THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

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SCHOOL  OF  LAW 

Gift  of 
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LIABILITY  OF  RAILROADS 

TO 
INTERSTATE    EMPLOYEES 


THE  LIABILITY 

OF 

RAILROADS 

TO 

INTERSTATE   EMPLOYEES 


A   STUDY   OF   CERTAIN   ASPECTS   OF   FEDERAL 
REGULATION  OF  THE  REMEDY  FOR  DEATH 
OR  INJURY  TO  EMPLOYEES  IN  THE  SER- 
VICE  OF  INTERSTATE    RAILROADS 


BY 

PHILIP    J.    DOHERTY 

OF  THE  BOSTON  BAR 


BOSTON 
LITTLE,  BROWN,  AND  COMPANY 

1911 


Copyright,  1911, 

By  Little,  Brown,  and  Company. 


All  rights  reserved 


Vt$o4L. 
1911 


^rfntets 
8.  J.  1'arkhill  <fc  Co.,  Boston,  U.  S.  A. 


AFFECTIONATELY    INSCRIBED 
TO   THE   MEMORY   OP 

Edward  A.  Moseley,  LL.D. 


6706gl 


The  writer  acknowledges  his  obligation  for 
the  valuable  assistance  of  Otis  Beall  Kent 
of  the  District  of  Columbia  Bar  and  of 
Robert  J.  Bottomly  of  the  Boston  Bar  in 
the  preparation  of  this  publication. 


CONTENTS 

PAGE 

Introduction 29 

PART  I 
THE  EMPLOYERS'   LIABILITY  ACTS 

CHAPTER   I 

employers'  liability  acts  of  1908  and  1910 

Sec.  1.    Summary 37 

Sec.  2.    Congressional  Intent       39 

Sec.  3.    Report  of  Senate  Judiciary  Committee 42 

CHAPTER   II 

FELLOW   SERVICE,    CONTRIBUTORY   NEGLIGENCE    AND    ASSUMPTION 

OF   RISK 

Sec.  4.    Fellow-Servant  Doctrine  in  General 45 

Sec.  5.    Basis  of  Fellow-Servant  Doctrine 45 

a.  Perils  Compensated  for  in  Wages      ...  45 

b.  Employee  Voluntarily  Assumes  the  Risk  48 

c.  Public  Policy 51 

d.  Risk  of   Injury  is   an   Obvious    Risk    of 

the  Employment 53 

e.  Saving    of    Industry    from    being   Over- 

burdened           54 

/.    Theory     that     Rule     Tends     to     Make 
Employees    more    Watchful   of    Each 

Other 55 

Sec.  6.    The  Intent  of  the  Act  Clearly  to  Abrogate  the 

Fellow-Servant  Doctrine 57 

Sec.  7.    Act  Restricts  Application  of  Contributory  Neg- 
ligence and  Assumption  of  Risk 58 


6  CONTENTS 

CHAPTER  III 

NATURE   OF   ACTION 

PAGE 

Sec.    8.    Act  Authorizes  New  Plenary  Action 63 

Sec.    9.    Federal  Act,  where  Applicable,  is  Exclusive   ...       65 
Sec.  10.    Necessity  of  Pleading  Basis  for  Federal  Right  .       66 

CHAPTER   IV 

WHEN   IS   A   RAILROAD   ENGAGED   IN    INTERSTATE   COMMERCE? 


Sec.  11.  In  General 

Sec.  12.  International  Text  Book  Company  Case 

Sec.  13.  Authorities  upon  Decided  Issues     .    .    . 

Sec.  14.  Summary  from  Authorities 

Sec.  15.  Method  of  Proof 

Sec.  16.  Act  Applies  to  Interstate  Electric  Lines 


68 
70 
73 
81 
82 
82 


CHAPTER  V 

WHAT   EMPLOYEES   ARE   ENGAGED   IN    INTERSTATE     COMMERCE? 

Sec.  17.    Employees  Included  in  the  Act 84 

Sec.  18.    Employment    must    Relate  to    Movement     of 

Traffic      90 

Sec.  19.    Causal     Relation     between     Employment     and 

Injury      96 

CHAPTER  VI 

CONSTRUCTION    OF   THE    ACT 

Sec.  20.    Statute  not  Retroactive 99 

Sec.  21.    No  Recovery  when    Injury    Caused    Solely   by 

Plaintiff's  own  Negligence 99 

Sec.  22.    Venue  of  Action 100 

Sec.  '!'■'>.    Jurisdiction   Concurrent  in    State    and    Federal 

Courts 100 


CONTENTS  7 

PAGE 

Sec.  24.    Survival  of  Action 100 

Sec.  25.    Construction  of  Section  I  of  the  Act  of  1908  .    .     101 


CHAPTER  VII 

STATUTES    FOR    SAFETY    OF    EMPLOYEES    AND    EFFECT    OF    THEIR 
VIOLATION 

Sec.  26.    Effect  of  the  Violation  of  "Any  Statute"    ...  Ill 

Sec.  27.    The  Safety  Appliance  Acts      112 

Sec.  28.    The  Hours  of  Service  Law 115 

Sec.  29.    The  Ash  Pan  Law 117 

Sec.  30.    The  Locomotive  Boiler  Inspection  Law    ....  118 

Sec.  31.    State  Statutes 118 


CHAPTER  VIII 

DAMAGES   AND   SUIT   BY   POOR   PERSON 

Sec.  32.  Damages  for  Personal  Injuries 126 

Sec.  33.  Damages  for  Death  Prior  to  1910      126 

Sec.  34.  Amendatory  Act  of  1910 127 

Sec.  35.  Annuity  Tables 128 

Sec.  36.  Suit  by  Poor  Person 130 

PART   II 

THE  CONSTITUTIONALITY  OF  EMPLOYERS' 
LIABILITY   ACT  OF   1908 

CHAPTER  IX 

CONGRESS  MAY  REGULATE  THE  RELATION  BETWEEN  MASTER  AND 
SERVANT   ENGAGED   IN    INTERSTATE    COMMERCE 

Sec.  37.    Constitutionality  of  the  Act:  In  General    .    .    .      132 
Sec.  38.    Review  of  Authorities  in  which  Power  of  Regu- 
lation is  Implied 133 


8  CONTENTS 

PAGE 

Sec.  39.    It  is  a  Regulation  of  Terms  and  Conditions  under 

which  Interstate  Commerce  is  Moved    ....      140 

Sec.  40.  It  Furthers  a  Free  Flow  of  Commerce  by  Pro- 
moting Industrial  Peace 142 

Sec.  41.    Employees    are    Instrumentalities   of    Interstate 

Commerce       144 

Sec.  42.    Relations  between  Company  and  Employee  are 

not  Local 146 

Sec.  43.    Human  Agency  is   most   Important   Factor    in 

Movement  of  Commerce 147 


CHAPTER  X 

THE  EMPLOYERS'   LIABILITY  ACT  DOES  NOT  UNDULY  ABRIDGE 
THE  FREEDOM    OF   CONTRACT 

Sec.  44.    The  Contention  of  the  Railroad  Counsel      ...      157 

Sec.  45.    No    Limitation    upon     Power   of    Congress    to 

Restrict  the  Exercise  of  the  Right  of  Contract     158 

Sec.  46.    Theoretical  Freedom  of  Contract  is  sometimes 

against  Public  Policy 160 

Sec.  47.    Liberty  of  Contract  is  merely  a  Common-Law 

Right 166 

Sec.  48.    This  Act  Frees  Employee  from  the  Burden  of  an 

Onerous  Legal  Fiction 175 

Sec.  49.  This  Doctrine  has  not  Impaired  Legislation  For- 
bidding Contracts  to  Avoid  the  Consequences 
of  Negligence  in  Handling  Freight 184 

Sec.  50.  This  Doctrine  cannot  Impair  an  Express  Legis- 
lative Power 185 

Sec.  51.    This   Doctrine    Imports    a    Dangerously   Loose 

Construction  of  the  Constitution 199 


CHAPTER  XI 

THE    ACT    DOES    NOT    CREATE    A    DISCRIMINATORY    CLASSIFICATION 

Sec.  52.    The  Contention  of  Railroad  Counsel 202 

Sbo.  53.    Doctrine  of  Common  Employment  Involves  same 

Classification      203 


CONTENTS  9 

PAGH 

Sec.  54.  Equal  Protection  of  the  Law  Clause  does  not 
Restrain  Normal  Exercise  of  Governmental 
Power      208 

Sec.  55.    Legislation    Applicable    only  to    Employees    of 

Railroad  Companies  is  not  Arbitrary  ....     213 

Sec.  56.    The  Inclusion  of   all  Railroad  Employees   is  a 

Reasonable  Classification 220 


CHAPTER  XII 

CONGRESS    MAY    PROVIDE    A    REMEDY    FOR    INJURIES    CAUSED    BY 
INTRASTATE    SERVANTS 

Sec  57.  The  Injury  from  a  Cause  within  the  Control 
of  the  Interstate  Employer  Constitutes  the 
Interference  with  Interstate  Commerce     .    .    .   t  225 

Sec.  58.    The  Impossibility  of  Segregating  Intrastate  from 

Interstate  Employees 228 


CHAPTER  XIII 

A   REVIEW   OF   THE    HOXIE    CASE 

Sec.  59.    Relation  of  this  Act  to  Sovereignty  of  States  .    .  230 
Sec.  60.    No  Action  under  Two  Thousand  Dollars      .    .    .  234 
Sec.  61.    Action    by  Personal    Representative    and  Dis- 
tribution of  Fund 238 

Sec.  62.    Railroad  held  to  Liability  of  Insurer 243 

Sec.  63.    Jurisdiction  of  State  Courts 245 

Sec.  64.    Justice  and  Policy  of  Fellow-Servant  Rule  .    .    .  273 


10  CONTENTS 

PART  III 

THE  SAFETY  APPLIANCE  ACTS 

CHAPTER  XIV 

ABSOLTJTE     MANDATORY     OBLIGATION     TO     COMPLY    WITH     SAFETY 

APPLIANCE    ACTS 

PAGE 

Sec  65.    Liability  of  Carriers  under  Act  is  Absolute      .    .     276 
Sec  66.    Duty  of  Defendant  Railroad  the  Same  in  Per- 
sonal Injury  Suits  as  in  Actions  for  Statutory 
Penalty 289 

CHAPTER  XV 

DEFINITION   OF   A    "USE"    OF   A   DEFECTIVE    CAR 

Sec  67.    What  is  a  "Use"  of  a  Defective  Car  within  the 

Meaning  of  the  Safety  Appliance  Acts?    .    .     296 
Sec  68.    Defects  in  Violation  of  Safety  Appliance  Acts     .     312 


Appendix 317 

Index 349 


TABLE   OF  CASES 

A 

Ablemanv.  Booth,  21  How.  506     . 254 

Adair  v.  United  States,  208  U.  S.  161,  177,  178;  28  Sup.  Ct. 

Rep.  277 136,  138,  186 

Addyston  Pipe  &  Steel  Co.  v.  United  States,  175  U.  S.  211, 

228,  229,  231;  20  Sup.  Ct.  Rep.  96      .    .    .184,  185,  187,  196 

Allen  v.  Tuscarora  Val.  R.  Co.,  229  Pa.  97 67 

Allgeyer  v.  Louisiana,  165  U.  S.  578;  17  Sup.  Ct.  Rep.  427  162 
Armitage  v.  Lancashire  &  Yorkshire  Ry.  Co.,  4  Minton- 

Senhouse  Workmen's  Compensation  Cases,  5 96 

Armour  Packing  Co.  v.  United  States,  209  U.  S.  56;  28  Sup. 

Ct.  Rep.  428 78,  187 

Asher  v.  Texas,  128  U.  S.  129;  9  Sup.  Ct.  Rep.  1  ....  141 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States,  172  Fed.  Rep. 

1021 283 

Atkin  v.  Kansas,  191  U.  S.  207;  24  Sup.  Ct.  Rep.  124  .  .  196 
Atlantic  Coast  Line  Ry.  Co.  v.  Riverside  Mills,  219  U.  S.  186; 

31  Sup.  Ct.  Rep.  164,  168 137,  196 

Atlantic  Coast  Line  Ry.  Co.  v.  United  States,  168  Fed.  Rep. 

175 279,  283,  289 

Augusta  S.  R.  Co.  v.  Wrightsville  and  T.  R.  Co.,  74  Fed. 

Rep.  522 77 

B 

Baddeley  v.  Granville,  19  Q.  B.  Div.  423 165 

Ballard  v.  Mississippi  Cotton  Oil  Co.,  81  Miss.  532;  34  So. 
Rep.  533 214 

Baltimore  and  Ohio  R.  Co.  v.  Baugh,  149  U.  S.  368,  384;  13 
Sup.  Ct.  Rep.  914 147,  224,  227 

Baltimore  &  Ohio  R.  Co.  v.  Interstate  Commerce  Commis- 
sion, 31  Sup.  Ct.  Rep.  621 117,  138 

Baltimore  &  Ohio  S.  W.  R.  Co.  v.  Voight,  176  U.S.  498;  20 
Sup.  Ct.  Rep.  385 184 


12  TABLE  OF  CASES 

Baltimore  &  P.  R.  Co.  v.  Mackey,  157  U.  S.  72 127 

Bank  of  Arapahoe  v.  David  Bradley  Co.,  72  Fed.  Rep.  867  236 

Barbier  v.  Connolly,  113  U.  S.  27;  5  Sup.  Ct.  Rep.  357  .    .  189 

Barque  Chusan,  2  Story,  455,  464,  465 134 

Bedford  Quarries  Co.  v.  Welch,  100  Fed.  Rep.  513  ...  .  236 
Belt  Ry.  Co.  of  Chicago  v.  United  States,  168  Fed.  Rep. 

542 74,  75,  80,  292 

Berry  Coal  &  Coke  Co.  v.  Chicago,  P.  &  St.  L.  Ry.  Co.,  92 

S.  W.  Rep.  714 78 

Bertholf  v.  O'Reilly,  74  N.  Y.  509,  524 172 

Black  v.  Charleston  &  W.  C.  Ry.  Co.,  69  S.  E.  Rep.  230     .    .  117 

Bletz  v.  Columbia  Nat'l  Bank,  87  Pa.  St.  92 265 

Boldt  v.  New  York  C.  R.  Co.,  18  N.  Y.  432 94 

Booth  v.  Illinois,  184  U.  S.  425;  22  Sup.  Ct.  Rep.  425     .    .  197 

Boston  &  Maine  R.  Co.  v.  Hurd,  108  Fed.  Rep.  116    ..    .  67 

Bowen  v.  Illinois  C.  R.  Co.,  136  Fed.  Rep.  306 97 

Bowman  v.  Chicago  &  N.  W.  Ry.  Co.,  125  U.  S.  465;  8  Sup. 

Ct.  Rep.  689,  1062 151 

Boyce  v.  Railway,  63  Iowa,  70;  18  N.  W.  Rep.  673  ...  266 
Bradbury  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (Iowa),  128  N.  W. 

Rep.  1 132,  264,  265 

Bradford  Construction  Co.  v.  Heflin,  88  Miss.  314;   42  So. 

Rep.  174 214 

Briggs  v.  Chicago  &  N.  W.  Ry.  Co.,  125  Fed.  Rep.  745   ...  276 

Brinckerhoff  v.  Bostwick,  88  N.  Y.  60 265 

Brinkmeier  v.  Missouri  Pacific  Ry.  Co.,  81  Kan.  101;    105 

Pac.  Rep.  221 67,  276,  280 

Brown  v.  Houston,  114  U.  S.  622;  5  Sup.  Ct.  Rep.  1091     .  151 

Brown  v.  Walker,  161  U.  S.  591,  606;   16  Sup.  Ct.  Rep.  644  261 

Burke  v.  Norwich  &  W.  R.  Company,  34  Conn.  474,  479  273 
Butler  Bros.  Shoe  Co.  v.  United  States  Rubber  Co.,  156 

Fed.  Rep.  1,  17 72 

C 

Cain,  Admx.,  v.  Southern  Ry.  Co.,  U.  S.  Circuit  Court, 

Knoxville,  Tennessee  1911 126,  128 

Campbell  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  53  N.  W.  Rep.  323  77 
Campbell  v.  Spokane  &  Inland  Empire  R.  Co.,  East  Dist.  of 

Washington,  not  yet  reported 101 


TABLE  OF   CASES  13 

Carson  v.  Southern  Ry.  Co.,  46  S.  E.  Rep.  525 276 

Cherokee  Tobacco,  The,  11  Wall.  616 263 

Chesapeake  &  Ohio  Ry.  Co.  v.  American  Exchange  Bank, 

92  Va.  495;  23  S.  E.  Rep.  935 263,  264 

Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155 196 

Chicago,  B.  &  Q.  R.  Co.  v.  McGuire,  219  U.  S.  549;  31  Sup. 

Ct.  Rep.  259 103,  139,  195,  198 

Chicago,  B.  &  Q.  R.  Co.  v.  United  States,  31  Sup.  Ct.  Rep. 

612 139,  282,  285 

Chicago  Cheese  Co.  v.  Fogg,  53  Fed.  Rep.  72 236 

Chicago  Junction  Ry.   Co.  v.  King,   169  Fed.  Rep.  372, 

377 87,  90,  276,  283 

Chicago,  K.  &  W.  R.  Co.  v.  Pontius,  157  U.  S.  209;  15  Sup. 

Ct.  Rep.  585 138,  216 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134  U.  S.  418;  10 

Sup.  Ct.  Rep.  462,  702 76 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Ross,  112  U.  S.  377;  5  Sup. 

Ct.  Rep.  184 205 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Voelker,  129  Fed.  Rep. 

522 75,  276,  294 

Chicago,  M.  &  St.  P.  Co.  v.  United  States,  165  Fed.  Rep. 

423 80,  283,  291 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brown,  185. Fed.  Rep.  80  .  .  278 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Stahley,  62  Fed.  Rep.  363  .  .  142 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Zernecke,  183  U.  S.  582;  22 

Sup.  Rep.  Ct.  229 ,  .    .    .    .     245 

Chicago  &  N.  W.  Ry.   Co.    v.   Osborne,  52   Fed.   Rep. 

912 75,  80 

Chicago  &  N.  W.  Ry.  Co.  v.  United  States,  168  Fed.  Rep. 

236 291,  292 

Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Interstate  Commerce 

Commission,  162  U.  S.  184;  16  Sup.  Ct.  Rep.  700  ...  .  80 
Cincinnati  Packet  Co.  v.  Bay,  200  U.  S.  179;  26  Sup.  Ct. 

Rep.  208 76 

Claflin  v.  Housman,  93  U.  S.  30,  130,  136 251,  265 

Clancy  v.  Barker,  131  Fed.  Rep.  161 97 

Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  Baker,  91  Fed.  Rep.  224  276 
Coe  v.  Erroll,  116  U.  S.  517;  6  Sup.  Ct.  Rep.  475  ...  .  80 
Cofrode  v.  Gardner,  79  Mich.  332;  44  N.  W.  Rep.  623  .  267 
Colasurdo  v.  Central  R.  R.  of  N.  J.,  180  Fed.  Rep.  832   .   86,  132 


14  TABLE  OF   CASES 

Coleman  State  ex  rel.  v.  Kelly,  70  L.  R.  A.  450 276 

Coley  v.  North  Carolina  R.  Co.,  128  N.  C.  534;  39  S.  E.  Rep. 

43 104,  276 

Commonwealth  v.  Lehigh  Valley  R.  Co.,  17  Atl.  Rep.  179    .       76 

Cooley  v.  Port  Wardens,  12  How.  299 147 

Copp  v.  Louisville  &  N.  R.  Co.,  43  La.  Ann.  511;  9  So.  Rep. 

441 265 

Cound  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  173  Fed.  Rep.  527  .  .  65,  66 
Covington  &  C.  Bridge  Co.  v.  Kentucky,  154  U.  S.  204;   14 

Sup.  Ct.  Rep.  1087 77 

Crawford  v.  New  York  C.  &  H.  R.  R.  Co.,  10  Am.  Neg.  Rep. 

166 80,  276,  307 

Crowley  v.  Christensen,  137  U.  S.  86;    11  Sup.  Ct.  Rep. 

13       188,  196 

Crutcher  v.  Kentucky,  141  U.  S.  47;  11  Sup.  Ct.  Rep.  851  .  151 
Cutting  v.  Fla.  Ry.  &  Nav.  Co.  et  al.,  46  Fed.  Rep.  641   ...       78 

D 

Daniel  Ball,  The,  10  Wall.  557      79,  292 

Davis  v.  Southern  Ry.  Co.,  60  S.  E.  Rep.  722 76 

Dawson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  114  Fed.  Rep.  870    .    276, 

313 
Debs,  Petitioner,  In  re,  158  U.  S.  564;  15  Sup.  Ct.  Rep.  900 .     31, 

70,  143,  151,  153,  226 
Defiance  Water  Company  v.  Defiance,  191  U.  S.  184;  24  Sup. 

Ct.  Rep.  63 259 

Delk  v.  St.   Louis  &  S.  F.    R.    Co.,    31    Sup.   Ct.  Rep. 

617 285,  288 

Denver   &   R.    G.    R.    Co.    v.    Arrighi,    129   Fed.    Rep. 

347 276,  288 

Denver  &  R.  G.  R.  Co.  v.  Gannon,  90  Pac.  Rep.  853  ..  .  276 
Devine  v.  Illinois  Central  R.  Co.,  156  111.  App.  369      ....    -276 

Dinsmore  v.  Racine  M.  R.  Co.,  12  Wis.  649 292 

Donegan  v.  Baltimore  &   N.  Y.  Ry.  Co.,  165  Fed.  Rep. 

869 276,  283 

Dred  Scott  Case,  19  How.  393,  614 150 

Dunbar  v .  Charleston  &  N.  C.  Ry.  Co.,  186  Fed.  Rep.  175  .  64 
Duncan  v.  Missouri,  152  U.  S.  377;  14  Sup.  Ct.  Rep.  570  .     218 


TABLE  OF  CASES  15 


E 

Elmore  v.  Seaboard  Air  Line  Ry.  Co.,  41 S.  E.  Rep.  786  .  .  276 
El  Paso  &  Northeastern  R.  Co.  v.  Gutierrez,  215  U.  S.  87;  30 

Sup.  Ct.  Rep.  217 103,  105 

Emerson  v.  Hall,  13  Peters,  409 242 

Employers'  Liability  Cases,  207  U.  S.  463,  495,  522;  28  Sup. 

Ct.  Rep.  141,  159 34,  41,  135,  136,  137,  234 

Erie  R.  Co.  v.  Russell,  183  Fed.  Rep.  722 276,  296 

Evey  v.  Railway,  81  Fed.  Rep.  294 267 

Exposition  Cotton  Mills  v.  Western  &  Atlantic  R.  Co.,  83 

Ga.  441 67 

Ewald  v.  Chicago  &  N.  W.  R.  Co.,  70  Wis.  420 93 


Farwell  v.  Boston  &  Worcester  Railroad  Corporation,  4  Mete. 

49      45,  46,  203,  274 

Felt  et  ux.  v.  Denver  &  R.  G.  R.  Co.,  110  Pac.  Rep.  215  .  .  .  278 
Fletcher  v.  Baltimore  &  Potomac  R.  Co.,  168  U.  S.  135;    18 

Sup.  Ct.  Rep.  35 94 

Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Whitehead,  6  Texas  Civil 

Appeals,  595 80 

Foster  v.  Neilson,  2  Pet.  253 263 

Frisbie  v.  United  States,  157  U.  S.  160;   15  Sup.  Ct.  Rep. 

586     . 189,  192 

Fulgham  v.  Midland  Valley  R.  Co.,  167  Fed.  Rep.  660     64,  132 

G 

Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Armstrong,  43  S.  W.  Rep. 

614 78 

Gibbons  v.  Ogden,  9  Wheat.  1,  189,  193,  198,  207,  208,  210, 

211,  230  ...  .  65,  71,  124,  134,  144,  152,  170,  191,  192,  234 
Gilbert  v.  Burlington,  C.  R.  &  N.  Ry.  Co.,  128  Fed.  Rep. 

529 276 

Globe  Refining  Co.  v.  Landa  Cotton  Oil  Co.,  190  U.  S.  540; 

23  Sup.  Ct.  Rep.  754 236 

Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  203;  5  Sup. 

Ct.  Rep.  826 145 


16  TABLE  OF  CASES 

Goldenstein  v.  Baltimore  &  Ohio  R.  Co.,  37  Washington  Law 

Reporter,  2 164 

Gordon  v.  Toledo,  St.  L.  &  W.  R.  Co.,  177  Fed.  Rep.  152  277 

Grand  v.  Ry.  Co.,  83  Mich.  564 288 

Great  Western  R.  Co.  v.  Miller,  19  Mich.  305 267 

Greene,  In  re,  52  Fed.  Rep.  104 74 

Greenlee  v.  Southern  Ry.  Co.,  30  S.  E.  Rep.  115 276 

Gregory  v.  Hill,  1869,  8th  Sc.  Sess.  Cas.,  3d  Series,  p.  282  .  .  179 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  150;  17  Sup.  Ct. 

Rep.  255 218 

Gulf,  C.  &  S.  F.  R.  Co.  v.  Fort  Grain  Co.,  73  S.  W.  Rep.  845  74 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Hefley,  158  U.  S.  98;  15  Sup.  Ct. 

Rep.  802  ... 241 

Gulf,  C.  &  S.  F.  R.  Co.  v.  Miami  S.  S.  Co.,  86  Fed.  Rep.  407  80 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Texas,  204  U.  S.  403;  27  Sup.  Ct. 

Rep.  360 78,  292 

Gundling  v.  Chicago,  177  U.  S.  183;  20  Sup.  Ct.  Rep.  633  197 


H 

Hall  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  149  Fed.  Rep.  564   ...  "99 

Hallam  v.  Ry.  Co.,  80  Wis.  299 287,  288 

Hanley  v.  Kansas  City  Southern  Ry.  Co.,  187  U.  S.  617;  23 

Sup.  Ct.  Rep.  214 76 

Harden  v.  No.  Carolina  R.  Co.,  40  S.  E.  Rep.  184 277 

Hayes  v.  Missouri,  120  U.  S..68;  7  Sup.  Ct.  Rep.  350     .    .  217 

Head  Money  Cases,  The,  112  U.  S.  580;  5  Sup.  Ct.  Rep.  247  263 

Herrickv.  Railway,  31  Minn.  1;  16  N.  W.  Rep.  413  ....  266 
Higgins  v.  Central  New  England  &  W.  R.  Co.,  155  Mass. 

176,  180 258 

Hohenleitner  v.  Southern  Pacific  Co.,  177  Fed.  Rep.  796    .  277 

Holden  v.  Hardy,  169  U.  S.  366;  18  Sup.  Ct.  Rep.  383   .    .  161, 

189,  193 

Holden  v.  Utah  &  M.  Mach.  Co.,  82  Fed.  Rep.  209  ...  236 
Hopkins  v.  United  States,  171  U.  S.  578;   19  Sup.  Ct.  Rep. 

40 151 

Hoist  v.  Merkley,  59  Fed.  Rep.  502 236 

Houston  D.  Nav.  Co.  v.  Insurance  Co.  of  N.  A.,  32  S.  W. 

Rep.  889 78 


TABLE  OF  CASES  17 

Hoxie  v.  New  York,  N.  H.  &  H.  R.  Co.,  82  Conn.  352  .    .     133, 

230,  265,  352 
Hudson  v.  Missouri  K.  &  T.  R.  Co.,  16  Kan.  470  ...  .  97 
Hutchinson  v.  York,  N.  &  B.  R.  Co.,  5  Exch.  343    ...    .     203 


International  &  G.  N.  Ry.  Co.  v.  Elder,  99  S.  W.  Rep.  856  .  277 
International  Textbook  Company  v.  Pigg,  217  U.  S.  91;  30 

Sup.  Ct.  Rep.  481 70 

Interstate  Commerce  Commission  v.  Bellaire,  Z.  &  C.  Ry. 

Co.,  77  Fed.  Rep.  942 77,  78,  80 

Interstate  Commerce  Commission  v.  Chicago,  K.  &  S.  R.  Co., 

81  Fed.  Rep.  783 78 

Interstate  Commerce  Commission  v.  Cincinnati  N.  O.  &  T. 

P.  Ry.,  162  U.  S.  184;  16  Sup.  Ct.  Rep.  700 75 

Interstate  Commerce  Commission  v.  Detroit,  G.  H.  &  M.  Ry. 

Co.,  167  U.  S.  633;  17  Sup.  Ct.  Rep.  986 80 

Interstate  Commerce  Commission  v.  Seaboard  A.  L.  Ry.  Co., 

82  Fed.  Rep.  563 78 

Interstate  Stock  Yards  Co.  v.  Indianapolis  U.  Ry.  Co.,  99 

Fed.  Rep.  472 77 


Jackson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  178  Fed.  Rep.  432, 

435  .... 97 

Jacobson  v.  Massachusetts,  197  U.  S.  11;  25  Sup.  Ct.  Rep. 

358 189,194 

Joel  v.  Morrison,  6  C.  &  P.  501 98 

Johnson  v.  Great  Northern  Ry.  Co.,  178  Fed.  Rep.  643   .      87, 

89,  113,  132,  277,  283 
Johnson  v.  Mammoth  Vein  Coal  Co.,  114  S.  W.  Rep.  722  .  277 
Johnson  v.  Southern  Pacific  Co.,  196  U.  S.  1,  17;  25  Sup. 

Ct.  Rep.  158 40,  80,   119,    138,  277,  290, 

294,  297,  298,  300,  307,  309,  310 

K 

Kansas  City  M.  &  B.  R.  Co.  v.  Flippo,  35  Southern  Rep.  457    277 
Kansas  City  So.  Ry.  v.  R.  R.  Com.  of  Arkansas,  106  Fed. 
Rep.  359 76 


18  TABLE  OF   CASES 

Kansas  City  So.  Ry.  Co.  v.  Quigley,  181  Fed.  Rep.  190  ..  .  117 
Kelly  v.   Great    Northern   Ry.  Co.,   152  Fed.  Rep.  211, 

227 41,  42,  277 

Kennedy  v.  Erie  Railroad  Co.,  Northern  Dist.  Ohio,  Nov. 

13,  1909 99 

Kentucky  Railroad  Tax  Cases,  115  U.  S.  321,  337;  6  Sup. 

Ct.  Rep.  57 217 

Kilpatrick  v.  Grand  Trunk  Ry.  Co.,  74  Vt.  288;  52  Atl.  Rep. 

531 107 

Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13;  22  Sup.  Ct. 

Rep.  1 189,  194 

Koehler,  Ex  parte,  30  Fed.  Rep.  867 77 

Krause  v.  Morgan,  53  Ohio  St.  26 287 

L 

Lake  Superior  &  M.  R.  Co.  v.  United  States,  93  U.  S.  442  .    .  293 

Lancer  v.  Anchor  Line,  155  Fed.  Rep.  433      151 

Larabee  v.  New  York,  N.  H.  &  H.  R.  Co.,  66  N.  E.  Rep. 

1032 277 

Legal  Tender  Cases,  12  Wall.  457,  550,  551 159,  160 

Lehigh  Valley  R.  Co.  v.  Commonwealth,  18  Atl.  Rep.  125  76 
Lehigh  Valley  R.  Co.  v.  Pennsylvania,  145  U.  S.  192;  12  Sup. 

Ct.  Rep.  806 76 

Lewis  v.  Pennsylvania  R.  Co.,  69  Atl.  Rep.  821 277 

Little  Miami  R.  Co.  v.  Stevens,  20  Ohio,  435 274 

Live  Stock  Association  v.  Crescent  City  Co.,  1  Abbott's 

U.  S.  Rep.  399 190 

Lloyd  v.  North  Carolina  R.  Co.,  151  N.  C.  536;  66  S.  E.  Rep. 

604     .        116 

Lochner  v.  New  York,  198  U.  S.  45;  25  Sup.  Ct.  Rep.  539      .  186 

Lottery  Cases,  188  U.  S.  321,  356;  23  Sup.  Ct.  Rep.  321  .  .  150 
Louisville  <t  Nashville  R.  Co.  v.  Central  Stock  Yards  Co., 

212  U.  S.  132;  29  Sup!  Ct.  Rep.  246,  248 294 

Louisville  &  Nashville  R.  Co.  v.  Melton,  218  U.  S.  36;  30 

Sup.  Ct.  Rep.  676 208,  216 

Louisville  &  Nashville  R.  Co.  v.  Mottley,  31  Sup.  Ct.  Rep. 

265 196,  198 

Lowell  v.  Boston  &  Lowell  Railroad  Corporation,  23  Pick. 

33 244 


TABLE  OF  CASES  19 

Luken  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  154  111.  App.  550; 

248  111.  377 277 

Lyon  v.  Charleston  &  W.  C.  Ry.  Co.,  56  S.  E.  Rep.  18  .     277,  315 

M 

Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283;  18 

Sup.  Ct.  Rep.  594 212,  216 

Mallott  v.  Hood,  66  N.  E.  Rep.  247 277,  291 

Martin  v.  Hunter,  Lessee,  1  Wheat.  334 253 

Martin  v.  Pittsburg  &  L.  E.  R.  Co.,  203  U.  S.  284;  27  Sup. 

Ct.  Rep.  100 213 

Mason  v.  The  Blaireau,  2  Cranch,  240 267 

Maxwell  v.  Atchison,  T.  &  S.  F.  R.  Co.,  34  Fed.  Rep.  286  .  .  236 
Mayfield  v.  Richards,  115  U.  S.  137;  5  Sup.  Ct.  Rep.  1177  .  262 
McLean  v.  Arkansas,  211  U.S.  539;  29  Sup.  Ct.  Rep.  206  .  195 
McNamara  v.  Washington  Terminal  Company,  35  App. 

D.  C.  230      192 

McNeil,  Ex  parte,  13  Wall.  236 253 

McNeil  v.  Southern  Ry.  Co.,  202  U.  S.  543;  26  Sup.  Ct.  Rep. 

722 74,  294 

Milner  v.   Great  Northern  Ry.   Co.,   2  Minton-Senhouse 

Workmen's  Compensation  Cases,  51,  52 90 

Minneapolis  &  St.  Louis  Ry.  Co.  v.  Beckwith,  129  U.  S.  26; 

9  Sup.  Ct.  Rep.  207 218 

Minneapolis  &  St.  Louis  Ry.  Co.  v.  Herrick,  127  U.  S.  210; 

8  Sup.  Ct.  Rep.  1176 138,  218 

Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593;  26  Sup.  Ct. 

Rep.  159 57,  213 

Mires  v.  St.  Louis  &  S.  F.  Ry.  Co.,  114  S.  W.  Rep.  1052  .  76 
Missouri,  Kansas  &  T.  Ry.  Co.  v.  New  Era  Milling  Co.,  101 

Pac.  Rep.  1011 78 

Missouri  Pacific  Ry.  Co.  v.  Fitzgerald,  160  U.  S.  556,  583; 

16  Sup.  Ct.  Rep.  389 259 

Missouri  Pacific  Ry.  Co.  v.  Larabee  Flour  Mills  Co.,  211 

U.  S.  612,  624;  29  Sup.  Ct.  Rep.  214,  218 294 

Missouri  Pacific  Railway  v.  Mackey,  127  U.  S.  205;  8  Sup. 

Ct.  Rep.  1161 57,  138,  216,  218 

Mitchell  v.  Clark,  110  U.  S.  633;   4  Sup.  Ct.   Rep.   170, 

312 159,  262 

Mitchell  v.  Crassweller,  13  C.  B.  235 98 


20  TABLE  OF  CASES 

Mobile  County  v.  Kimball,  102  U.  S.  691 218 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Bromberg,  37  Southern  Rep. 

395 80,  277,  307,  308 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed,  219  U.  S.  35; 

31  Sup.  Ct.  Rep.  136 213 

Morier  v.  St.  Paul,  M.  &  M.  R.  Co.,  31  Minn.  351;  17  N.  W. 

Rep.  952 97 

Morris  v.  Railway,  65  Iowa,  727;  23  N.  W.  Rep.  143  .    .    .     266 

Moses  Taylor,  The,  4  Wall.  411,  429 250,  253 

Moyer  v.  Peabody,  212  U.  S.  78,  84;  29  Sup.  Ct.  Rep.  235  .  174 
Mugler  v.  Kansas,  123  U.  S.  623;  8  Sup.  Ct.  Rep.  273  .  .  196 
Muller  w.Oregon,  208  U.S.  412;  28  Sup.  Ct.  Rep.  324   ...     197 

Munn  v.  Illinois,  94  U.  S.  113 172,  192 

Munn  v.  People,  69  111.  80,  91 168 

Murray  v.  Chicago  &  N.  W.  Ry.  Co.,  62  Fed.  Rep.  24  .  .  259 
Murray  v.  Hoboken  Land  &  Improvement  Co.,  18  How.  272  174 
Myrtle  v.  Nevada  C.  &  O.  Ry.  Co.,  137  Fed.  Rep.  193    ...     277 


N 

Narramore  v.  Cleveland,  C.  C.  &  St.  L.  Ry.,  96  Fed.  Rep. 

298,  300,  302 59,  165 

New  v.  Baltimore  &  O.  R.  Co.,  181  Fed.  Rep.  698  ...  .  64 
New  Orleans  Cotton  Ex.  v.  Cincinnati,  N.  O.  &  T.  P.  R. 

Co.,  2  I.  C.  C.  Rep.  289       76 

New  York  v.  Erie  R.  Co.,  198  N.  Y.  369;  91  N.  E.  Rep.  849  .  115 
New  York  Central  R.  Co.  v.  Lockwood,  17  Wall.  357      .    162, 

171,  184 
New  York,  N.  H.  &  H.  R.  Co.  v.  Interstate  Commerce  Com- 
mission, 200  U.  S.  361;  26  Sup.  Ct.  Rep.  272    187 

Nichols  v.  Chesapeake  &  O.  Ry.  Co.,  105  S.  W.  Rep.  481  .  .  277 
Nicholson  v.  Transylvania  R.  Co.,  138  N.  C.  516;  51  S.  E. 

Rep.  40 219 

Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg,  170  Fed.  Rep.  551  .  .  277 
Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg,  184  Fed.  Rep.  828  .  .  277 
Norfolk  &  \\\  Ry.  Co.  v.  Pennsylvania,  136  U.  S.  114;    10 

Sup.  Ct.  Rep.  958 75,  76 

Norfolk  &  W.  Ry.  Co.  v.  United  States,   177  Fed.  Rep. 
623 283,  290 


TABLE  OF  CASES  21 

Northern  Securities  Co.  v.  United  States,  193  U.  S.  197;  24 
Sup.  Ct.  Rep.  436 145 


O 

O'Brien  v.  Star  Line,  Limited,  1  Butterworth's  Workmen's 
Compensation  Cases,  177      97 

Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  557;  19  Sup.  Ct.  Rep. 
281 212 

Owens  v.  Chicago  G.  W.  Ry.  Co.  (Minn.),  128  N.  W.  Rep.  1011     273 


P 

Pacific  Coast  Ry.  Co.  v.  United  States,  173  Fed.  Rep.  448     .       75 

Packet  Company  v.  McCue,  17  Wall.  508 92 

Parsons  v.  Chicago  &  N.  W.  Ry.  Co.,  167  U.  S.  447;  17  Sup. 

Ct.  Rep.  887 75 

Patterson  v.  Bark  Eudora,  190  U.  S.  169;  23  Sup.  Ct.  Rep. 

821 134,  194,  196 

Patterson  v.  Kentucky,  97  U.  S.  501 188,  189 

Pederson  v.  Delaware,  L.  &  W.  R.  Co.,  184  Fed.  Rep.  737  63 
Peel  Splint  Coal  Co.  v.  State,  15  S.  E.  Rep.  1000,  1006    ...      144 

Peirce  v.  Van  Dusen,  78  Fed.  Rep.  693 216 

Pelin  v.  New  York  C.  &  H.  R.  R.  Co.,  102  App.  Div.  71;  115 

App.  Div.  883;  188  N.  Y.  565 116 

Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co., 

96  U.  S.  1,  9 71 

People  v.  Welch,  141  N.  Y.  273 265 

Perkins  v.  Northern  Pacific  Ry.  Co.,  155  Fed.  Rep.  445  .  .  78 
Philadelphia,  B.  &  W.  R.  Co.  v.  Tucker,  35  App.  D.  C.  123  .      91, 

102,  103 
Philadelphia  &  R.  Ry.  Co.  v.  Winkler,  56  Atl.  Rep.  112  .  277,290 
Pittsburg,  C.  C.  &  St.  L.  Ry.  Co.  v.  Ross,  212  U.  S.  560;  29 

Sup.  Ct.  Rep.  688 209 

Pittsburg  &  S.  Coal  Co.  v.  Bates,  156  U.  S.  577;    15  Sup. 

Ct.  Rep.  415 151 

Plummer  v.  Northern  Pac.  Ry.  Co.,  152  Fed.  Rep.  206  .  63,  277 
Poli  v.  Numa  Block  Coal  Company  (Supreme  Court  of  Iowa), 

127  N.  W.  Rep.  1105      161 


22  TABLE   OF   CASES 

Porter  v.  St.  Louis  S.  W.  Ry.  Co.,  95  S.  W.  Rep.  453  .    .    .  78 
Potter  v.  Baltimore  &  Ohio  R.  Co.,  37  Washington  Law  Re- 
porter, 466 164 

R 

Railroad  Commission  Cases,  116  U.  S.  307;  6  Sup.  Ct.  Rep. 

334,  348,  349,  388,  391,  1191 196 

Raisler  v.  Oliver,  97  Ala.  714;  12  So.  Rep.  238 265 

Reeves  v.  Railway,  70  L.  R.  A.  513 266 

Rhodes  v.  Iowa,  170  U.  S.  412;  18  Sup.  Ct.  Rep.  664     .    .  79 

Rio  Grande  Southern  R.  Co.  v.  Campbell,  96  Pac.  Rep.  986  .  277 

Robb  v.  Connolly,  111  U.  S.  624,  637;  4  Sup.  Ct.  Rep.  544  259 
Robbins  v.  Shelby  County  Taxing  District,  120  U.  S.  489; 

7  Sup.  Ct.  Rep.  592 141 

Roberts  v.  Dunsmuir,  75  Cal.  203;  16  Pac.  Rep.  782  ..    .  267 

Rosney  v.  Erie  R.  Co.,  135  Fed.  Rep.  311 80,  277 

Roush  v.  Great  Northern  Ry.  Co.,  U.  S.  Circuit  Court,  E. 

Dist.  of  Washington,  October  5,  1909     .    .  *. 132 

S 

St.  Louis  Cordage  Co.  v.  Miller,  126  Fed.  Rep.  495  ...  277 
St.  Louis,  I.  M.  &  St.  P.  R.  Co.  v.  Paul,  173  U.  S.  404;   19 

Sup.  Ct.  Rep.  419 189 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Conley,  187  Fed.  Rep.  949  .  132 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hesterly  (Ark.),  135  S.  W. 

Rep.  874 133,  273 

St.  Louis,  I.  M.&S.Ry.  Co.  r.  Neal,  98  S.  W.  Rep.  958  .  .  277 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  210  U.  S.  281;   28 

Sup.  Ct.  Rep.  616,  618 62,  138,  277,  281,  310,  312 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  York,  123  S.  W.  Rep.  376  .  .  277 
St.  Louis,  M.  B.  T.  Ry.  Co.  v.  Callahan,  194  U.  S.  628;  24 

Sup.  Ct.  Rep.  857 216 

St.  Louis,  S.W.R.  Co.  w.Harvey,  144  Fed.  Rep.  806.    ...  97 

St.  Louis  &  S.  F.  Ry.  Co.  v.  Delk,  158  Fed.  Rep.  931   .    .    75,  277 

St.  Louis &S.F.R.  Co.  v.  State,  113 S.W.  Rep.  203  .    ...  76 

Saterlee  v.  M.itthewson,  2  Peters,  380 159 

Sawyer  v.. Commonwealth,  182  Mass.  245 167 

Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co.,  205  U.  S.  1;  27  Sup. 

( !t.  Rep.  407 113,  119,  162,  277,  278,  290,  298,  310 


TABLE  OF  CASES  23 

Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co.,  31  Sup.  Ct.  Rep.  561  286 
Schuyler  Nat'l  Bank  v.  Bollong,  24  Neb.  827;  40  N.  W.  Rep. 

414 265 

Seawell  et  al.  v.  Kansas  City,  Fort  S.  &  M.  R.  Co.,  24  S.  W. 

Rep.  1002 77 

Shelby  Ice  &  Fuel  Co.  v.  Southern  Ry.  Co.,  60  S.  E.  Rep.  721  76 

Sherlock  v.  Ailing,  93  U.  S.  99 148 

Shohoney  v.  Quincy,  O.  &  K.  C.  Ry.  Co.,  122  S.  W.  Rep. 

1025 277 

Siebold,  Ex  parte,  100  U.  S.  371 255 

Siegel  v.  New  York  C.  &  H.  R.   R.   Co.,   178  Fed.   Rep. 

873 277,  283,  301 

Sigman  v.  Southern  R.  Co.,  135  N.  C.  184;  47  S.  E.  Rep.  421  219 

Simon  v.  House,  46  Fed.  Rep.  317 236 

Slaughter-House  Cases,  16  Wall.  36,  80 168,  189 

Smeltzer  v.  St.  Louis  &  S.  F.  R.  Co.,  168  Fed.  Rep.  420  .  .  236 
Smith  v.  Baker,  1891,  Appeal  Cases,  L.  R.,  H.  of  L.  325;  60 

L.  J.,  Q.  B.  n.  s.  683 104 

Snead  v.  Central  of  Georgia  Ry.  Co.,  151  Fed.  Rep.  608  .  89,  277 
SoonHing  v.  Crowley,  113  U.  S.  703;  5  Sup.  Ct.  Rep.  730  .  192 
South  Eastern  Railway  Company  v.  Railway  Commission- 
ers, 6  Q.  B.  D.  586      91 

Southern  Pacific  Co.  v.  Allen,  106  S.  W.  Rep.  441    ...    .  277 

Southern  Ry.  Co.  v.  Carson,  194  U.  S.  136 277 

Southern  Ry.  Co.  v.  Simmons,  55  S.  E.  Rep.  459  ....  277 
Southwestern  Oil  Co.  v.  Texas,  217  U.  S.  114;  30  Sup.  Ct. 

Rep.  496 213 

Spain  y.  St.  Louis  &S.  F.R.  Co.,  151  Fed.  Rep.  522,527    .    .  151 

Sprague  v.  Wisconsin  Central  Ry.  Co.,  116  N.  W.  Rep.  104   .  277 

State  Freight  Tax  Case,  15  Wall.  232,  275 146 

State  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  40  Minn.  267  .    .  76 

State  v.  Southern  Kansas  Ry.  Co.  of  Texas,  49  S.  W.  Rep.  252  78 

Sternberger  v.  Cape  Fear  &  Y.  V.  R.  Co.,  7  S.  E.  Rep.  836  .  76 

Stewart  v.  Kahn,  11  Wall.  493,  505 261 

Suttle  v.  Choctaw,  O.  &  G.  R.  Co.,  144  Fed.  Rep.  668    ..    .  277 


Taggart  v.  Republic  Iron  &  S.  Co.,  141  Fed.  Rep.  910    ..    .     277 
Taylor  v.  Manufacturing  Co.,  143  Mass.  470 288 


24 


TABLE  OF  CASES 


W. 


248 
146 

75,77 

.       78 

.       78 

78 


Teal  v.  Felton,  12  How.  284 

Telegraph  Co.  v.  Texas,  105  U.  S.  460,  464    ..    . 
Texas  &  N.  O.  R.  Co.  et  al.  v.  Sabine  Tram  Co.,  121  S. 

Rep.  256 

Texas  &  P.  Ry.  Co.  v.  Avery,  33  S.  W.  Rep.  704 
Texas  &  P.  Ry.  Co.  v.  Clark,  23  S.  W.  Rep.  698  . 
Texas  &  P.  Ry.  Co.  v.  Davis,  54  S.  W.  Rep.  381  . 
Texas  &  P.  Ry.  Co.  v.  Interstate  Commerce  Commission,  162 

U.  S.  197;  16  Sup.  Ct.  Rep.  666 78,  292 

Texas  &  P.  Ry.  Co.  v.  Swearingen,  122  Fed.  Rep.  193  ...  277 
Thompson  v.  Wabash  R.  Co.,  184  Fed.  Rep.  554  ...  .  63 
Thrussell  v.  Handyside,  L.  R.  20  Q.  B.  D.  359,  364  ...  179 
Toledo,  St.  L.  &  W.  R.  Co.  v.  Gordon,  177  Fed.  Rep.  152  .  .  277 
Toledo,  St.  L.  &  W.  R.  Co.  v.  Sellars,  184  Fed.  Rep.  855 .    .    .     278 

Tozer  v.  United  States,  52  Fed.  Rep.  917 75 

Troxell  v.  Delaware,  L.  &  W.  R.  Co.,  180  Fed.  Rep.  871,  876       64 

Troxler  v.  Southern  Ry.  Co.,  32  S.  E.  Rep.  550 277 

Tullis  v.  Lake  Erie  &  W.  R.  Co.,  175  U.  S.  348;  20  Sup.  Ct. 

Rep.  136 138,  209,  216 


U 

Union  Pacific  Ry.  Co.  v.  Brady,  161  Fed.  Rep.  719  ...  277 
Union  Pacific  Ry.  Co.  v.  Goodridge,  149  U.  S.  680;  13  Sup. 

Ct.  Rep.  970 189 

Union  Pacific  Ry.  Co.  v.  Wyler,  158  U.  S.  285 67 

Union  Stock  Yards  Co.  of  Omaha  v.  United  States,  169  Fed. 

Rep.  404 80,  293 

United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  163  Fed.  Rep. 

517 283,  289 

United  States  v.  Baltimore  &  Ohio  R.  Co.,  184  Fed.  Rep. 

94 278 

United  States  v.  Boston  &  M.  R.  Co.,  168  Fed.  Rep.  148   .  313 

United  States  v.  Boyer,  85  Fed.  Rep.  425 74 

United  States  v.  Central  of  Ga.  Ry.  Co.,  157  Fed.  Rep.  893  75 

United  States  v.  ( Ihicago  G.  W.  Ry.  Co.,  162  Fed.  Rep.  775  .  291 

United  States  v.  Chicago,  K.  &  S.  Ry.  Co.,  81  Fed.  Rep.  783  .  292 
United  States  v.  ( Jhicago,  M.  &  St.  P.  Ry.  Co.,  149  Fed.  Rep. 

486 74,  290' 

United  States  v.  Chicago  A  N.  W.  Ry.  Co.,  157  Fed.  Rep.  616  313 


TABLE  OF  CASES  25 

United  States  v.  Colorado  &  N.  W.  Ry.  Co.,  157  Fed.  Rep. 

321,  341,  342,  343  [Pet.  for  Certiorari],  209  U.  S.  544;  28 

Sup.  Ct.  Rep.  570 74,  75,  77,  78,  151,  292,  294 

United  States  v.  Coombs,  37  U.  S.  72 77 

United  States  v.  Delaware.  L.  &  W.  R.  Co.,  152  Fed.  Rep.  269  77 
United  States  v.  Denver  &  R.  G.  R.  Co.,  163  Fed.  Rep.  519  .  283 
United  States  v.  Erie  R.  Co.,  166  Fed.  Rep.  352  ...  .  76,  283 
United  States  v.  Freight  Association,  166  U.  S.  290,  312;  17 

Sup.  Ct.  Rep.  540 146 

United  States  v.  Geddes,  131  Fed.  Rep.  542  .  .  .  74,  78,  292 
United  States  v.  Great  Northern  R.  Co.,  145  Fed.  Rep. 

438 290 

United  States  v.  Hall,  98  U.  S.  343 239 

United  States  v.  Hopkins,  82  Fed.  Rep.  529 74 

United  States  v.  Illinois  Cent.  R.  Co.,  177  Fed.  Rep.  801  .  283 
United  States  v.  Illinois  Cent.  R.  Co.,  180  Fed.  Rep.  630     .     116, 

117 
United  States  v.  Illinois  Term.  R.  Co.,  168  Fed.  Rep.  546  .  78 
United  States  v.  International  &  Great  Northern  R.  Co.,  174 

Fed.  Rep.  638 291 

United  States  v.  Joint  Traffic  Association,  171  U.  S.  505,  573; 

19  Sup.  Ct.  Rep.  25 187 

United  States  v.  Ju  Toy,  198  U.  S.  253,  263;  25  Sup.  Ct.  Rep. 

644 174 

United  States  v.  Lehigh  Valley  R.  Co.,  115  Fed.  Rep.  373  .  .  77 
United  States  v.  Lehigh  Valley  R.  Co.,  162  Fed.  Rep.  410  .  .  283 
United  States  v.  L.  &  N.  R.  Co.,  156  Fed.  Rep.  193;    184 

Fed.  Rep.  99 291,  313 

United  States  v.  Norfolk  &  Western  Ry.  Co.,  184  Fed.  Rep. 

99 278 

United  States  v.  Northern  Pacific  Terminal  Co.,  144  Fed. 

Rep.  861 80,  291,  292 

United  States  v.  Pacific  Coast  Ry.  Co.,  173  Fed.  Rep.  448, 

453 77 

United  States  v.  Philadelphia  &  R.  Ry.  Co.,  162  Fed.  Rep. 

403 283 

United  States  v.  Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co.,  143  Fed. 

Rep.  360 80 

United  States  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  154  Fed.  Rep. 

516 291 


26  TABLE  OF  CASES 

United  States  v.  St.  Louis  Southwestern  Ry.  Co.  of  Texas, 
184  Fed.  Rep.  28 296 

United  States  v.  Southern  Pacific  Co.,  169  Fed.  Rep.  407, 
409 283,  291 

United  States  v.  Southern  Pacific  Co.,  Kent's  Index-Digest, 
288 308 

United  States  v.  Southern  Ry.  Co.,  164  Fed.  Rep.  347  .     290,  295 

United  States  v.  Southern  Ry.  Co.,  170  Fed.  Rep.  1014  ...     290 

United  States  v.  Southern  Ry.  Co.,  Kent's  Index-Digest, 
269 74,  75 

United  States  v.  Standard  Oil  Co.,  155  Fed.  Rep.  305     ...        75 

United  States  v.  Toledo  Terminal  R.  Co.,  Kent's  Index- 
Digest,  283 290 

United  States  v.  Union  Stock  Yards  Co.  of  Omaha,  161  Fed. 
Rep.  919 292,  293 

United  States  v.  Wabash-Pittsburgh  Term.  Ry.  Co.,  Kent's 
Index-Digest,  285 313 

United  States  v.  Western  &  Atlantic  R.  Co.,  184  Fed.  Rep. 
336 278 

United  States  v.  Wheeling  &  L.  E.  R.  Co.,  167  Fed.  Rep.  198, 
201 283,  290,  291 

United  States  v.  Wiley,  11  Wall.  508 262 

United  States  v.  Winn,  3  Sumner,  209 119 

V 

Voelker  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  116  Fed.  Rep.  867; 
129  Fed.  Rep.  522 66,  277,  291 

W 

Wabash  R.  Co.  v.  Bhymer,  214  111.  579 67 

Wabash  R.  Co.  v.  United  States,  168  Fed.  Rep.  1   ...    80,  290, 

291,  295,  307 
Wabash  R.  Co.  v.  United  States,  172  Fed.  Rep.  864  ...  .  283 
Walsh  v.  New  York,  N.  H.  &  H.  R.  Co.,   173  Fed.  Rep. 

494 126,  128,  132 

Walsh  v.  Whiteley,  1888,  L.  R.  21  Q.  B.  Div.  371,  374  .  .  29 
Watson,  Admx.,  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  169  Fed. 

Rep.  942 39,  64,  132,  151,  283 


TABLE  OF  CASES  27 

West  End  Improvement  Club  v.  Omaha  &  C.  B.  Ry.  Co.,  17 

I.  C.  C.  Rep.  239 83 

Western  Union  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  356; 

7  Sup.  Ct.  Rep.  1126 72 

Wilcox  v.  Consolidated  Gas  Co.,  212  U.  S.  19;  29  Sup.  Ct. 

Rep.  192 196 

Wilcox  v.  Luco,  118  Cal.  642;   45  Pac.  Rep.  676;   50  Pac. 

Rep.  758 265 

Willson  v.  Rock  Creek  R.  Co.,  7 1.  C.  C.  Rep.  83 83 

Wilson  v.  Merry,  19  L.  T.  Rep.  n.  s.  30;    L.  R.  1  Scotch 

App.  326 227 

Winfree  v.  Northern  Pacific  Ry.  Co.,  164  Fed.  Rep.  698  .  99,  133 
Wisconsin  v.  Chicago.  M.  &  St.  P.  Ry.  Co.,  136  Wis.  407; 

117  N.  W.  Rep.  686 117,  295 

Woodley  v.  Metropolitan  District  R.  R.  Co.  (1877),  L.  R.  2 

Exch.  Div.  384 179 


Y 

York  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  110  S.  W.  Rep. 
803 277,  278 


Z 

Zeigler  v.  Danbury  &  Norwalk  Railroad  Company,  52  Conn. 

543,  556 275 

Zikos  v.  Oregon  L.  &  N.  Co.,  179  Fed.  Rep.  893  ...    .  85,  132 


"  The  Courts  cannot  abolish  the  old  rules  and  adopt  others  which  shall 
suit  existing  facts  and  remedy  existing  evils.  That  must  be  done  by 
the  legislature.  But  when  tardy  statutes  are  promulgated,  the  Courts 
should  interpret  them  as  favorably  as  their  terms  will  allow,  and  not 
proceed  to  shackle  them  with  the  discredited  common  law  manacles." 
CA8PAB  v.  Lewin  et  al.,  109  Pacific  Reporter,  667. 


LIABILITY  OF  RAILROADS 

TO 

INTERSTATE  EMPLOYEES 

INTRODUCTION 

There  are  two  schools  of  thought  as  to  the  con- 
struction to  be  given  to  enactments  relating  to 
masters  and  workmen.  One  may  be  called  the 
property  view  and  the  other  the  humane  view. 
One  regards  principally  the  interest  of  the  prop- 
erty owner;  the  other  regards  the  rights  of  the 
workman  as  a  man. 

In  a  note  to  47  L.  R.  A.  171,  Mr.  C.  B.  Labatt 
says  that  "it  is  possible  to  regard  the  social  and 
economic  relations  between  the  parties  to  a  con- 
tract of  service  from  two  points  of  view  which 
are  fundamentally  and  essentially  different."  And 
he  quotes  Lord  Esher,  in  Walsh  v.  Whiteley,  1888, 
L.  R.  21  Q.  B.  Div.  371,  374.  "There  have  always 
been,  I  think,  two  schools  of  thought  in  relation 
to  cases  of  this  kind.  .  .  .  The  view  of  one  school 
has  been  that,  in  order  to  prevent  injustice  to 
masters,  the  construction  of  these  enactments 
relating  to  masters  and  workmen  should  be  nar- 


30  LIABILITY   OF   RAILROADS 

rowed,  and  that  they  should  be  construed  as 
strictly  as  possible.  The  view  of  the  other  school 
is  that  master  and  workman  are  not  really  on  an 
equal  footing." 

Mr.  Labatt  further  points  out  the  alignment  of 
these  two  theories.  "The  theory  of  the  former  of 
the  schools  here  mentioned  is  based  on  the  sup- 
posed mobility  of  labor,  and  involves  the  conclu- 
sion that  a  servant  is  perfectly  free  to  accept, 
remain  in,  or  abandon  an  employment  of  which 
he  knows  some  particular  risk  to  be  an  in- 
cident. .  .  . 

11  According  to  the  alternative  theory,  based  on 
the  actual  facts  of  everyday  life  in  civilized  coun- 
tries, no  real  freedom  can  be  predicated  on  the 
acts  of  any  one  who  must  take  his  chances  in  a 
labor  market  which,  under  normal  conditions,  is 
constantly  glutted,  and  in  times  of  unusual 
stress  is  'thronged  with  suitors'  to  such  an  extent 
that  a  man  of  average  capacity  is  fully  justified 
in  believing  that  if  he  declines  an  offered  situa- 
tion, or  leaves  one  which  he  holds,  he  will  be  ex- 
posing himself  and  those  dependent  on  him  to  a 
really  serious  danger  of  destitution." 

That  such  conflicting  schools  of  thought  exist 
is  manifest  in  our  decisions,  and  the  existence  of 
two  such  contradictory  theories  of  interpretation 
presents  an  interesting  and  important  question 
in  progressive  legislation. 


TO   INTERSTATE   EMPLOYEES  31 

The  question  often  is,  not  as  to  what  the  Con- 
stitution may  say  upon  the  subject,  nor  as  to  the 
manifest  legislative  purpose  of  the  enactment 
in  question,  but  as  to  the  point  of  view  from  which 
its  consideration  will  be  approached.  What  is 
the  school  of  economic  thought  of  the  court  which 
is  to  pass  upon  the  question?  Which  "  school  of 
thought"  will  prevail? 

If,  in  these  pages,  the  writer  has  seemed  to  err 
in  considering  the  subject  from  the  "alternative 
view,"  it  is  for  the  reason  that  he  believes  the 
courts  have  come  to  realize  that  it  is  no  longer 
wise  to  lend  support  to  the  idea  that  workmen  can- 
not find  redress  for  their  grievances  in  the  courts. 
Mr.  Justice  Brewer,  delivering  the  opinion  of  the 
court  in  the  case  of  Tn  re  Debs,  petitioner,  158 
U.  S.  564,  15  Sup.  Ct,  Rep.  900,  said:  "...  it 
is  a  lesson  whi^h  cannot  be  learned  too  soon  or 
too  thoroughly,  ihat  u  ider  this  government  of 
and  by  the  people  the  means  of  redress  of  all  wrongs 
are  through  the  courts  and  at  the  ballot  box." 

Now,  when  legislation  is  enacted  in  pursuance 
of  the  method  suggested  by  the  court,  it  is  not 
likely  that  our  highest  court  will  find  itself  so 
enamored  of  the  common-law  rules  which  this 
legislation  abrogates  as  to  declare  it  unconstitu- 
tional or  to  emasculate  it  by  a  narrow  construction 
of  its  terms. 

The  day  seems  to  be  dawning  when  our  courts 


32  LIABILITY   OF  RAILROADS 

will  listen  in  patience  to  an  appeal  based  upon  the 
right  of  workmen  to  recover  for  injuries  received 
by  them  while  in  the  performance  of  their  duty  to 
those  who  thrust  upon  them  all  the  dangers  of 
their  common  enterprise. 

But  the  " property  school"  of  judicial  thought 
is  far  from  yielding  up  the  field  to  the  modern  and 
more  humane  view.  It  is  supported  by  keen  intel- 
lects at  the  bar.  The  leading  railroad  counsel  of 
the  country  have  had  conferences  and  have  unit- 
edly made  preparation  for  the  litigation  to  test 
the  constitutionality  of  the  Federal  Employers' 
Liability  Act  of  June,  1908. 

The  Report  of  the  Committee  appointed  at  the 
conference  of  railroad  counsel  held  at  Atlantic 
City,  N.  J.,  July  13,  14  and  15,  1908  to  consider 
this  subject  contains  an  able  statement  of  the 
objections  urged  by  the  railroads  against  this 
legislation,  and  a  concise  and  vigorous  review  of 
the  authorities  tending  to  support  their  conten- 
tion that  this  law  is  unconstitutional.  The  rail- 
roads are  well  prepared  and  fortified  for  the 
contest. 

Congressional  action  in  abolishing  the  fellow- 
servant  doctrine  in  its  application  to  deaths  and 
injuries  of  employees  of  interstate  railroads  is  due 
to  the  growing  public  sentiment  that  this  particu- 
lar rule  of  the  common  law  is  unjust.  Economists, 
publicists,  and  statesmen  on   both  sides   of   the 


TO   INTERSTATE   EMPLOYEES  33 

Atlantic  have  long  condemned  the  doctrine. 
Public  opinion  does  not  to-day  subscribe  to  any 
of  the  grounds  put  forward  in  its  defense. 

The  cry  for  a  change  was  regarded  by  many 
courts  as  only  the  clamoring  of  the  demagogue. 
They  discouraged  negligence  cases,  and  the  negli- 
gence flourished  at  the  expense  of  the  industrial 
toilers. 

While  hair-splitting  in  the  courts  defeated  the 
victims  of  industrial  accidents,  the  crippling  and 
killing  of  workmen  continued  at  a  rapid  pace. 

Legislation  was,  therefore,  necessary  to  estab- 
lish as  a  principle  of  public  policy  the  obligation 
of  society  to  provide  for  those  who  are  injured 
in  the  maintenance  of  its  industries.  Some  of 
the  States  passed  remedial  legislation  to  remove 
the  injustice  of  the  fellow-servant  rule.  But  the 
judicial  interpretation  of  these  statutes,  in  most 
cases,  deprived  them  of  their  vigor.  Courts  found 
a  ''voluntary  assumption  of  risk,"  and  took  cases 
from  juries  on  the  ground  of  "  contributory  negli- 
gence" in  many  instances  where  a  brave  perform- 
ance of  dangerous  service  solely  for  the  employer's 
advantage  was  the  only  fault  attributable  to  the 
injured  workman.  Fidelity  was  punished  as  a 
fault.  Our  judicial  decisions  denying  justice  to 
workmen  will  be  severely  criticised  by  the  future 
historian. 

When  the  appeal  was  made  for  federal  legis- 


34  LIABILITY   OF   RAILROADS 

lation,  Congress  was  in  no  haste  to  act.  Although 
federal  power  over  the  subject  was  limited  to  a 
narrow  range,  that  is,  to  employees  engaged  in 
interstate  commerce,  it  was  nearly  twenty  years 
after  the  first  bill  was  introduced  before  any  law 
was  enacted  by  the  national  legislature.  The 
first  enactment  on  the  subject,  that  of  June  11, 
1906,  34  Stat.  L.,  232,  c.  3073,  was  held  uncon- 
stitutional by  the  Supreme  Court.  Employers1 
Liability  Cases,  207  U.  S.  463,  28  Sup.  Ct.  Rep. 
141. 

After  this  decision  President  Roosevelt,  on 
March  25,  1908,  sent  to  Congress  a  message  in 
part  as  follows: 

"I  renew  my  recommendation  for  the  immedi- 
ate re-enactment  of  an  Employers'  Liability  Law, 
drawn  to  conform  to  the  recent  decision  of  the 
Supreme  Court.  Within  the  limits  indicated  by 
the  court,  the  law  should  be  made  thorough  and 
comprehensive,  and  the  protection  it  affords 
should  embrace  every  class  of  employee  to  which 
the  power  of  Congress  can  extend.  .  .  . 

"It  is  a  reproach  to  us  as  a  nation  that  in  both 
federal  and  state  legislation  we  have  afforded 
less  protection  to  public  and  private  employees 
than  any  other  industrial  country  of  the  world." 

Congress  thereafter  passed  the  Act  of  April  22, 
1908,  35  Stat.  L.  65,  c.  149,  which,  as  amended 
by  the  Act  of  April  5,    1910,   36  Stat.   L.   291, 


TO   INTERSTATE  EMPLOYEES  35 

c.  143,  is  now  the  law  as  to  cases  arising  between 
railroads  engaged  in  interstate  commerce  and  their 
interstate  employees.  It  has  been  held  that  this 
law  superseded  and  renders  inoperative  all  reme- 
dies heretofore  existing  by  the  laws  of  the  States 
as  to  actions  against  interstate  railroads  for  the 
death  or  injury  of  their  interstate  employees. 

It  will,  therefore,  be  seen  that  the  federal  law 
is  the  only  law  which  can  be  relied  upon  for  a 
recovery  for  injuries  to  the  interstate  employees 
of  an  interstate  railroad.  Most  railroads  are 
engaged  in  interstate  commerce.  Most  of  the 
employees  of  an  interstate  railroad  are  them- 
selves engaged  in  interstate  commerce.  It  is 
manifest,  therefore,  that  most  of  the  suits  against 
railroads  for  personal  injuries  to  employees  must 
be  governed  by  the  federal  law,  if  its  constitution- 
ality is  sustained. 

Questions  in  relation  to  its  constitutionality 
and  interpretation  are,  therefore,  of  interest  to 
the  profession.  An  attempt  to  formulate  these 
questions  and  to  give  consideration  to  their  weight 
and  effect  will  be  made  in  the  following  pages. 


PART  ONE 

The  Employers'  Liability  Acts 

CHAPTER   I 

EMPLOYERS'    LIABILITY    ACTS    OF    1908    AND    1910 

§  1.    Summary. 

In  actions  for  death  or  personal  injuries  suf- 
fered by  any  employee  of  a  common  carrier  by 
railroad,  when  both  employee  and  the  carrier 
are  engaged  in  either  foreign,  interstate,  or  terri- 
torial commerce,  or  commerce  in  the  District  of 
Columbia,  the  Act,  as  amended  April  5,  1910, 

(a)  totally  abolishes  the  defense  heretofore  per- 
mitted under  the  fellow-servant  doctrine; 

(b)  authorizes  an  action  where  such  death  or 
injury  arises  by  reason  of  any  defect  or  insuffi- 
ciency in  the  cars,  engines,  appliances,  machinery, 
track,  roadbed,  works,  boats,  wharves,  or  other 
equipment  of  such  carrier,  due  to  its  negligence; 

(c)  totally  abolishes  the  application  to  such 
actions  of  the  doctrines  of  "assumption  of  risk" 
and  "  contributory  negligence,"  where  the  viola- 
tion by  the  carrier  of  any  statute  enacted  for  the 
safety  of  employees  contributed  to  the  casualty; 

(d)  permits   recovery   in   any   action    brought 


38  LIABILITY   OF   RAILROADS 

under  the  statute  notwithstanding  contributory 
negligence  of  the  plaintiff,  but  requires  the  jury- 
to  deduct  from  the  damages  such  proportion 
thereof  as  ma}^  be  attributable  to  the  contribu- 
tory fault  of  the  employee; 

(e)  forbids  "  contracting  out "  of  the  liability 
created  by  the  statute; 

(/)  requires  the  deduction  from  damages  of 
any  sum  employee  has  received  from  any  insur- 
ance or  indemnity  fund  to  which  his  employer 
has  contributed; 

(g)  permits  action  to  be  brought  in  either  the 
federal  or  state  courts; 

(h)  prohibits  removal  to  federal  court  of  an 
action  under  the  statute  begun  in  a  state  court; 

(i)  authorizes  suit  to  be  brought  in  the  United 
States  Circuit  Court  for  the  district  in  which  the 
cause  of  action  may  arise,  or  in  which  the  de- 
fendant may  reside  or  be  doing  business; x 

(j)  authorizes  suit  for  death; 

(k)  permits  survival  of  action  but  provides  that 

1  By  the  terms  of  the  Judicial  Code,  approved  March  3,  1911, 
and  in  effect  on  and  ;ifter  January  1,  1912,  the  Circuit  Courts  of 
the  United  Stales  are  abolished,  and  by  Chap.  13,  Section  291 
t  hereof  the  powers  and  duties  heretofore  exercised  by  the  Circuit 
t  units  arc  transferred  and  imposed  upon  the  United  States  Dis- 
trict Courts.  Article  S,  Section  24  of  the  Judicial  Code  confers 
upon  the  District  Courts  jurisdiction  "of  all  suits  and  proceed- 
ings arising  under  any  law  regulating  commerce,  except  those 
suits  and  proceedings  of  which  exclusive  jurisdiction  has  been 
conferred  upon  the  ( lommerce  Court." 


TO   INTERSTATE   EMPLOYEES  39 

there  shall  be  only  one  recovery  for  the  same 
injury; 

(I)  fixes  no  statutory  limit  upon  the  amount  of 
damages  recoverable;  and 

(m)  permits  no  action  under  the  Act  unless 
commenced  within  two  years  from  the  date  the 
cause  of  action  accrues. 

§  2.   Congressional  Intent. 

The  legislative  purpose  and  intent  in  the  enact- 
ment of  the  Act  of  Congress  approved  April  22, 
1908,  35  Stat.  L.  65,  c.  149,  generally  referred  to 
as  the  Employers'  Liability  Act,  cannot  be  stated 
better  than  in  the  language  of  District  Judge 
Trieber  in  his  decision  in  the  case  of  Watson,  Admx. 
v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  169  Fed.  Rep. 
942:  "The  object  of  Congress  in  the  enactment 
of  the  law  was  to  protect  the  men  employed  in 
this  hazardous  occupation  in  which  thousands 
are  annually  killed  or  maimed  without  any  fault 
of  the  master  himself,  but  by  the  negligence  of 
other  employees,  over  whom  the  servant  has  no 
control  and  in  whose  selection  he  had  no  voice. 
The  legislation  is  neither  new  nor  revolutionary. 
It  has  been  recommended  by  President  Roosevelt 
in  his  annual  message  in  1905  and  again  in  a  special 
message  on  January  31,  1908.  A  similar  Act  was 
passed  by  the  English  Parliament  as  early  as 
1880,  and  among  the  States  of  the  Union  a  large 


40  LIABILITY  OF  RAILROADS 

number  have  either  abolished  the  fellow-servant 
rule  entirely  or  modified  it  materially  in  respect 
to  employees  engaged  in  hazardous  occupations, 
many  of  them  limiting  the  change  to  railroads. 
.  .  .  Similar  statutes  have  also  been  for  a  long 
time  in  force  in  most  of  the  continental  states  of 
Europe.  This  evidences  that  such  legislation  is 
in  compliance  with  the  demands  of  an  enlightened 
public  opinion.  To  effect  that  purpose  it  is  wholly 
immaterial  what  the  employment  of  the  fellow- 
servant  is.  Public  opinion,  as  expressed  through 
the  legislative  departments  of  the  nation,  as  well 
as  many  of  the  States,  evidently  considered  it  an 
injustice  that  persons  injured,  or,  in  case  of  death, 
the  surviving  members  of  the  family  should  be- 
come burdens  on  the  public  and  objects  of  charity, 
and  therefore  considered  it  better  public  policy 
that  the  employer  should  be  required  to  make 
some  provision  for  them,  charging  the  moneys 
thus  expended  to  expenses  of  management  or 
cost  of  production,  and  collect  it  indirectly  from 
the  public.  The  enactment  of  such  a  statute  not 
only  results  in  protecting  the  employees  of  carriers 
by  rail,  but  at  the  same  time  guards  the  public 
welfare  by  securing  the  safety  of  travelers.  The 
latter  is  one  of  the  reasons  mentioned  by  the  court 
in  Johnson  v.  Southern  Pacific  Co.,  19G  U.  S.  1, 
17,  25  Sup.  Ct.  Rep.  158,  involving  the  Safety 
Appliance  Act.     As  stated  by  Mr.  Justice  Moody, 


TO   INTERSTATE   EMPLOYEES  41 

in  his  dissenting  opinion  in  the  Employers'  Liabil- 
ity Cases,  207  U.  S.  463,  28  Sup.  Ct.  Rep.  159, 
'Any  law  which  promotes  the  safety  of  either 
[meaning  the  employee  or  passengers]  promotes 
the  safety  of  both.' 

"That  provisions  for  the  safety  of  the  employees 
of  a  railwajr,  if  not  directly  at  least  indirectly, 
add  to  that  of  the  passengers  cannot  be  doubted. 
The  knowledge  of  the  fact  that  in  case  of  an  acci- 
dent some  provision  will  be  made  for  him  in  case  of 
disability,  or  for  the  family  dependent  upon  him 
if  death  results  from  the  injury,  relieves  the  em- 
ployee's mind  to  that  extent  of  the  anxiety  inci- 
dental to  the  fear  entertained  by  every  man,  and 
especially  if  he  has  a  family  dependent  upon  his 
earning,  as  to  what  would  become  of  them  if  he 
become  helpless  or  be  killed.  This  anxiety  ever 
present  to  those  engaged  in  such  a  hazardous 
occupation  as  that  of  railways  propelled  by  the 
dangerous  agency  of  steam  may  materially  affect 
the  safety  of  the  passengers  entrusted  to  them  in 
an  emergency  in  which  cool  judgment  is  so  essen- 
tial. By  making  this  provision  for  him,  legislators 
might  well  have  reasoned  that  the  safety  of  the 
passengers  is  as  much  promoted  as  that  of  the 
employee." 

It  was  well  said  by  District  Judge  Morris  in  his 
interpretation  of  the  former  federal  employers' 
liability  law  in  the  case  of  Kelly  v.  Great  Northern 


42  LIABILITY   OF  RAILROADS 

Ry.  Co.,  152  Fed.  Rep.  211,  227,  that  Congress 
".  .  .  enacted  the  statute  .  .  .  and  by  its 
provisions  changed  certain  common-law  rules 
determining  liability  in  order  to  promote  that 
object  [the  protection  of  the  lives  and  persons  of 
employees]  by  securing,  so  far  as  the  statute  could 
compel  it,  a  more  careful  selection  of  employees, 
a  closer  and  more  careful  supervision  of  them 
and  a  more  rigid  enforcement  of  their  duties." 

§  3.   Report  of  Senate  Judiciary  Committee. 

A  new  public  policy  is  declared  for  this  class  of 
cases.  As  was  said  by  the  Judiciary  Committee 
of  the  Senate  in  Report  432,  61st  Congress,  2d 
Session,  March  22,  1910,  on  page  2:  "The  pas- 
sage of  the  original  Act  and  the  perfection  thereof 
by  the  amendments  herein  proposed,  stand  forth 
as  a  declaration  of  public  policy  to  change  radically, 
as  far  as  congressional  power  can  extend,  those 
rules  of  the  common  law  which  the  President  in 
a  recent  speech  at  Chicago  characterized  as  'un- 
just.' President  Taft  in  his  address  at  Chicago, 
September  16,  1909,  referred  to  'the  continuance 
of  unjust  rules  of  law  exempting  employers  from 
liability  for  accidents  to  laborers.' 

"This  public  policy  which  we  now  declare  is 
based  upon  the  failure  of  the  common-law  rules 
as  to  liability  for  accident  to  meet  the  modern  in- 
dustrial conditions,  and  is  based  not  alone  upon 


TO   INTERSTATE   EMPLOYEES  43 

the  failure  of  these  rules  in  the  United  States, 
but  their  failure  in  other  countries  as  well.  Mr. 
Asquith,  present  prime  minister  of  England,  said 
that  it  was  '  revolting  to  sentiment  and  judgment 
that  men  who  met  with  accidents  through  the 
necessary  exigencies  of  daily  occupation,  should 
be  a  charge  upon  their  own  families.' 

"The  passage  of  the  law  was  urged  upon  the 
strongest  and  highest  considerations  of  justice 
and  promotion  of  the  public  welfare.  It  was 
largely  influenced  by  the  strong  message  of  Presi- 
dent Roosevelt  to  the  Sixtieth  Congress  in  Decem- 
ber, 1907,  in  which  the  basis  of  the  legislation  was 
clearly  and  strongly  placed  upon  the  ground  of 
justice  to  the  railroad  workmen  of  this  country 
and  in  which  legislation  was  urged  to  the  limit 
of  congressional  power  upon  this  subject.  In  the 
message  President  Roosevelt  said  : 

"'The  practice  of  putting  the  entire  burden  of 
loss  to  life  or  limb  upon  the  victim  or  the  vic- 
tim's family  is  a  form  of  social  injustice  in  which 
the  United  States  stands  in  unenviable  promi- 
nence. In  both  our  federal  and  our  state  legisla- 
tion we  have,  with  few  exceptions,  scarcely  gone 
farther  than  the  repeal  of  the  fellow-servant 
principle  of  the  old  law  of  liability,  and  in  some 
of  our  States  even  this  slight  modification  of  a 
completely  outgrown  principle  has  not  yet  been 
secured.     The  legislation  of  the  rest  of  the  in- 


44  LIABILITY   OF   RAILROADS 

dustrial  world  stands  out  in  striking  contrast  to 
our  backwardness  in  this  respect.  Since  1895 
practically  every  country  in  Europe,  together 
with  Great  Britain,  New  Zealand,  Australia, 
British  Columbia,  and  the  Cape  of  Good  Hope 
has  enacted  legislation  embodying  in  one  form  or 
another  the  complete  recognition  of  the  principle 
which  places  upon  the  employer  the  entire  trade 
risk  in  the  various  lines  of  industry.'" 


TO   INTERSTATE   EMPLOYEES  45 


CHAPTER  II 

FELLOW-SERVICE,     CONTRIBUTORY     NEGLIGENCE 
AND    ASSUMPTION    OF    RISK 

§  4.    Fellow-Servant  Doctrine.    In  General. 

Under  the  rules  of  the  common  law  as  estab- 
lished by  a  long  line  of  judicial  decisions,  no  em- 
ployee can  recover  from  his  employer  for  a  personal 
injury  received  in  the  course  of  his  employment 
and  caused  by  the  negligence  of  any  other  em- 
ployee who  is  engaged  in  the  service  of  the  common 
master  of  both,  where  both  the  injured  employee 
and  the  one  causing  the  injury  derive  authority 
and  compensation  from  the  same  source. 

Or,  stated  in  another  way,  one  who  enters  the 
employ  of  another  assumes  the  risk  of  all  the 
manifest  perils  of  such  employment,  including  the 
peril  of  injury  by  the  negligence  of  any  employee 
engaged  in  the  same  common  employment. 

§  5.    Basis  of  Fellow-Servant  Doctrine. 

This  exemption  of  the  employer  from  liability 
for  injuries  to  employees  has  been  based  on  various 
grounds. 

a.  Perils  Compensated  for  in  Wages.  —  Chief  Justice 
Shaw,  in  the  case  of  Farwell  v.  Boston  &  Worces- 


46  LIABILITY   OF   RAILROADS 

ter  Railroad  Corporation,  4  Mete.  49,  says  that 
".  .  .  he  who  engages  in  the  employment  of 
another  for  the  performance  of  specified  duties 
and  services,  for  compensation,  takes  upon  him- 
self the  natural  and  ordinary  risks  and  perils 
incident  to  the  performance  of  such  services,  and 
in  legal  presumption,  the  compensation  is  adjusted 
accordingly.  .  .  .  They  are  perils  incident  to  the 
service,  and  which  can  be  as  distinctly  foreseen 
and  provided  for  in  the  rate  of  compensation  as 
any  others." 

That  the  perils  may  be  " distinctly  foreseen" 
and  are  "incident  to  the  service"  gives  us  no  light 
upon  the  right  of  a  judicial  tribunal  to  relieve  the 
operators  of  a  business  in  which  such  perils  inhere 
from  any  obligation  to  compensate  for  injuries 
incident  to  the  service  which  they  have  insti- 
tuted. In  other  words,  the  fact  that  the  perils 
are  "incident  to  the  service"  should  not  relieve 
those  who  institute  the  service  to  which  such 
perils  are  incident,  and  cast  their  burdens  upon 
those  whose  labor  is  necessary  to  the  carrying  on 
of  the  enterprise  of  which  the  perilous  service  is 
a  part. 

But  let  us  examine  the  proposition  that  the  risk 
may  be  assumed  to  be  "provided  for"  in  the  rate 
of  compensation.  By  the  use  of  this  expression 
it  may  be  inferred  that  Chief  Justice  Shaw  in- 
tended that  the  enterprise  should  bear  the  burden 


TO   INTERSTATE   EMPLOYEES  47 

of  the  "risk,"  and  that  it  should  be  "provided  for 
in  the  rate  of  compensation."  In  other  words, 
it  is  a  fair  construction  of  this  expression  by  Chief 
Justice  Shaw  that  the  rate  of  compensation  should 
be  such  as  to  compensate  all  for  the  "risk"  of 
injury  to  some.  His  suggestion  of  compensation 
for  the  risk,  logically  carried  out,  would  compen- 
sate in  increased  wages  for  "risk"  all  who  incurred 
the  risk.  This  increase,  if  compensatory  —  and 
he  suggests  the  compensatory  idea  —  would  be 
equal  to  a  sum  which  would  compensate  for  the 
injuries  of  those  who  actually  suffered. 

The  rule  of  compensation  for  risk  is  less  logical 
than  the  rule  of  compensation  for  injury.  But 
if  it  were  carried  out,  the  burden  upon  the  enter- 
prise would  be  the  same  in  each  case.  It  would 
be  much  more  logical  to  pay  every  man  in  wages 
only  for  the  services  he  renders,  and  to  compensate 
for  injuries  incident  to  the  service  only  those  who 
meet  with  injury. 

But  the  assumption  that  all  are  paid,  for  "risk" 
is  a  pure  judicial  assumption  without  any  founda- 
tion in  fact. 

"Wages  are  not  relatively  higher  in  the  most 
dangerous  trades."  Report  to  the  Legislature  of 
New  York,  March  19,  1910,  of  the  Commission 
appointed  by  Governor  Hughes  to  Inquire  into 
the  Question  of  Employers'  Liability,  page  7. 

And  even  if  wages  beyond  the  standard  of  com- 


48  LIABILITY   OF   RAILROADS 

pensation  for  service  were  fixed  to  compensate 
for  risk  of  injury,  it  would  be  less  logical  than  the 
rule  recognized  by  Congress  that  those  who  in- 
stitute a  service  in  which  perils  lurk  should  bear 
the  burdens  which  result  from  such  perils. 

To  refuse  compensation  to  those  who  are  ac- 
tually overtaken  by  the  risk,  because  all  are  pre- 
sumed to  be  compensated  for  the  risks  by  which 
they  may  be  overtaken,  is  not  creditable  to  any 
system  of  jurisprudence. 

6.  Employee  Voluntarily  Assumes  the  Risk.  —  Over 
and  over  again  our  jurists  have  asserted  that  work- 
men "  voluntarily  assume  the  manifest  perils  of 
their  employment."  In  fact,  no  such  voluntary  as- 
sumption exists.  There  is  nothing  voluntary  about 
it  on  the  part  of  workmen.  On  the  contrary,  it  is 
a  clear  case  of  judicial  compulsion.  Wherever  and 
whenever  in  any  line  of  work  a  toiler  undertakes 
to  sell  his  services,  the  courts  compel  him,  under 
the  rules  of  the  common  law,  to  place  his  life  and 
limb,  without  requital,  at  the  jeopardy  of  the 
manifest  perils  of  the  employment,  including  the 
risk  of  injury  from  negligence  of  fellow  employees. 
In ,  no  employment  he  seeks  can  he  escape  this 
burden  placed  upon  him  by  the  courts.  His 
volition  is  not  material.  If  there  is  any  logical 
presumption  arising  from  such  a  state  of  facts, 
it  is  that  he  objects  and  is  unwilling  to  have 
this  burden   cast  upon   him.     As  this   burden  is 


TO   INTERSTATE   EMPLOYEES  49 

manifestly  prejudicial  to  him,  the  legal  presump- 
tion ought  to  be  that  it  is  involuntarily  borne 
by  him,  because  in  no  manner  can  he  escape 
from  the  burden  of  the  rule  laid  down  by  the 
courts. 

Without  regard  to  the  intention  of  the  parties, 
without  regard  to  the  natural  disinclination  of 
any  workman  to  assume  such  a  burdensome  obli- 
gation and  one  so  prejudicial  to  his  interests,  the 
courts  have  " implied"  this  obligation  in  every 
contract  of  employment. 

The  rule  is  a  pure  fiction.  It  has  no  basis  but 
that  of  judicial  implication.  By  this  fiction,  judi- 
cially created  for  the  purpose  of  assigning  a  reason 
for  the  discrimination,  workmen  have  been  dif- 
ferentiated from  all  other  individuals.  And  yet 
to  relieve  this  harsh,  coercive,  and  discriminating 
rule  of  the  appearance  of  injustice,  its  creators  and 
defenders  speak  of  it  as  ''voluntary"  on  the  part 
of  workmen.  The  rule  denies  equality  of  right  to 
those  whose  rights  should  be  most  zealously 
guarded  by  the  courts. 

The  fiction  of  " assumption  of  risk"  follows  the 
workman  into  any  and  all  occupations  where  he 
enters  the  service  of  another. 

As  he  must  assume  the  risk,  not  by  his  own 
volition,  but  by  the  mandate  of  the  courts,  it  is, 
to  say  the  least,  misleading  to  refer  to  this  doc- 
trine as  a  " voluntary  assumption  of  risk."     "The 


50  LIABILITY  OF  RAILROADS 

law  should  commend  itself  to  the  plain  sense  of 
men  for  its  reasonings  as  well  as  its  rulings." 

Courts  cannot  disclaim  the  knowledge  that 
workmen  not  only  do  not  "voluntarily"  assume 
the  risks  of  bodily  injury,  but  everywhere  protest 
against  being  compelled  to  assume  such  risks. 

The  learned  author  of  Ruegg's  Employers' 
Liability  and  Workmen's  Compensation,  8th  edi- 
tion, page  16,  under  the  caption  "Common  Em- 
ployment founded  on  Unsound  Reasoning,"  says, 
"It  is  not  difficult  to  discover  the  unsoundness  of 
such  a  system  of  reasoning.  The  workman  makes 
no  contract  to  take  the  consequences  of  the  negli- 
gence of  his  fellow  workmen;  he  would  be  gener- 
ally very  unwilling  to  do  so. 

"The  only  ground  for  implying  such  assent  is, 
that  he  has  entered  into  association  with  others 
upon  work,  in  the  course  of  which  he  knows  there 
is  risk  of  injury  arising  from  the  negligence  of 
those  with  whom  he  thus  places  himself  in  con- 
tact. If  from  this  knowledge  of  a  risk  a  con- 
tract to  exclude  the  principle  of  respondeat  su- 
perior is  to  be  implied,  then  it  should  be  implied 
in  the  case  of  passengers  upon  railways  and  other 
public  conveyances,  and  indeed  in  the  case  of 
every  one  who  voluntarily  subjects  himself  to  the 
ordinary  dangers  of  street  traffic." 

The  Commission  appointed  to  inquire  into  the 
Question  of  Employers'   Liability,   in  its  report 


TO   INTERSTATE   EMPLOYEES  51 

to  the  legislature  of  New  York,  March  19,  1910, 
page  13,  says  in  regard  to  assumption  of  risk :  "The 
decisions  of  our  courts  as  to  the  intricacies  and  re- 
finements of  the  doctrine  have  been  most  unsatis- 
factory. The  doctrine  has  grown  gradually  into 
the  present  common  law  in  the  last  sixty  years  to 
be  a  series  of  judicial  decisions.  .  .  .  The  courts 
choose  to  say  that  there  is  an  ' assumption'  of 
the  risk,  or  an  'implied  contract,'  but  in  the 
ordinary  case  that  is  merely  a  form  of  words 
which  the  rule  of  law  happens  to  take. 

"The  real  fact  is,  that  there  is  usually  no  con- 
tract between  the  employer  and  the  workman  con- 
cerning it,  even  in  the  hazardous  trades.  ...  As 
a  matter  of  fact,  however,  under  modern  industrial 
conditions  the  individual  workman  consents  and 
assumes  the  risk  only  because  in  the  ordinary 
case  he  has  no  option  to  do  anything  else." 

c.  Public  Policy.  —  Public  policy  is  sometimes 
given  as  the  basis  of  the  rule.  Public  policy, 
however,  dictates  that  responsibility  for  indus- 
trial accidents  shall  be  so  placed  as  to  decrease 
their  volume. 

The  courts  have  held  railroads  to  a  high  degree 
of  responsibility  for  accidents  to  passengers.  Thus 
passengers  have  been  protected  and  safeguarded. 

The  courts  have  relaxed  responsibility  and  have 
exercised  refinements  in  reasoning  to  relieve  from 
responsibility  where  employees  were  concerned. 


52  LIABILITY   OF  RAILROADS 

Thus  accidents  to  employees  have  been  pro- 
moted till  their  increasing  volume  is  a  national 
scandal. 

In  the  Bulletin  of  the  United  States  Bureau  of 
Labor,  for  September,  1908,  it  is  said  that  upon  a 
conservative  estimate,  the  total  mortality  from 
accidents  in  the  United  States  among  adult 
male  wage  earners  is  between  thirty  thousand 
and  thirty-five  thousand.  ...  In  addition  there 
were  approximately  not  much  less  than  two 
million  non-fatal  accidents,  that  not  only  involve 
a  vast  amount  of  human  suffering  and  sorrow,  but 
materially  curtail  the  normal  longevity  among 
those  exposed  to  the  often  needless  risk  of  in- 
dustrial casualties. 

These  remarkable  official  figures  demonstrate 
that  the  common-law  rule  has  failed  to  accomplish 
its  purpose  of  minimizing  the  volume  of  accidents 
by  requiring  a  community  of  diligence  on  the  part 
of  all  the  actors  in  industrial  enterprise. 

As  said  by  Mr.  Labatt,  Master  and  Servant, 
vol.  2,  page  1325:  "If,  in  countries  where  the 
doctrine  of  common  employment  has  been  more 
or  less  circumscribed,  none  of  the  evil  results 
which  it  is  declared  to  have  obviated  can  be  de- 
tected, it  may  be  safely  concluded  that  no  harm 
would  have  been  produced  if  the  doctrine  had 
never  been  applied,  and  that  no  harm  will  result 
if  it  should  be  entirely  abrogated  by  the  legis- 


TO   INTERSTATE   EMPLOYEES  53 

latures,  —  the  only  authority  by  which  such  a 
change  in  the  law  can  now  be  effected." 

d.  Risk  of  Injury  is  an  Obvious  Risk  of  the 
Employment.  —  It  is  often  urged  that  the  risk 
of  injury  is  an  obvious  risk  of  the  employment. 
But  why  place  on  those  least  able  to  bear  it  the 
consequences  of  risk,  which  is  a  part  of  a  gainful 
enterprise  launched  with  full  knowledge  of  its 
perils? 

The  owners  who  have  instituted  a  business, 
knowing  that  it  is  obviously  perilous,  should  bear 
the  burden  of  accidents  which  may  result  to  those 
whom  they  have  invited  as  assistants  in  the 
enterprise. 

The  dangers  are  initiated  by  the  employer. 
They  grow  out  of  his  enterprise.  They  are  affected 
by  his  methods.  They  arise  from  the  use  of  his 
instrumentalities.  They  may  be  largely  con- 
trolled by  his  power. 

The  workman  is  powerless  over  the  causes  of 
the  accidents  which  overwhelm  him. 

Though  the  risk  be  obvious,  no  effort  of  the 
workman  can  relieve  him  from  the  perils.  He  is 
not  employed  to  find  methods  to  escape  from 
the  perils  of  his  employment.  He  is  employed 
to  work  at  a  designated  task.  He  has  no  time  to 
devise  safeguards.     That  is  the  master's  duty. 

A  law  founded  in  justice  should  place  responsi- 
bility where  the  power  and   authority  exist   to 


54  LIABILITY   OF   RAILROADS 

safeguard  from  perils,  not  upon  those  whose  means 
and  opportunity  are  unavailing  to  prevent  the 
dangers  which  are  obvious. 

The  perils  are  incident  to  the  master's  business. 
That  they  are  obvious  is  no  reason  for  his  relief 
from  their  consequences. 

e.  Saving  of  Industry  from  being  Overburdened.  — 
The  Commission,  heretofore  mentioned,  in  its 
report  to  the  Legislature  of  New  York,  says 
of  the  common-law  system  that  "its  develop- 
ment was  profoundly  influenced  by  the  belief 
of  the  courts  that  the  necessity  of  profit  in 
industrial  enterprises  demanded  protection,  even 
at  the  expense  of  damage  to  certain  individuals." 

This  is  the  reason  which  leads  to  the  attempt 
to  find  other  reasons.  Underlying  all  the  reasons 
given  for  the  rule  by  its  defenders  is  a  motive  to 
free  industry  from  the  consequences  of  the  perils 
incident  to  its  maintenance. 

The  defenders  of  the  fellow-servant  and  kindred 
doctrines  will  not  permit  industry  to  suffer,  though 
men  may  suffer  and  die  unrequited. 

"The  right  to  life  is  the  highest  right."  No 
jurist  can  for  the  protection  of  the  right  of  an 
industry  to  live  justify  the  abrogation  of  a  man's 
right  to  live. 

Nor  should  a  man  be  denied  redress  if  crippled 
without  his  fault  merely  because  an  industry  or 
a  business  may  in  consequence  be  crippled.     In- 


TO   INTERSTATE   EMPLOYEES  55 

dustry  should  pay  the  toll  it   takes  in  life  and 
limb. 

j.  Theory  that  Rule  Tends  to  make  Employees  more 
Watchful  of  Each  Other.  —  It  has  been  suggested  as 
a  defense  of  the  fellow-servant  doctrine  that 
"it  tends  to  make  each  servant  more  watchful 
of  his  fellows,  and  thus  to  promote  the  safety 
of  all  as  well  as  the  efficiency  of  their  com- 
mon work."  This  contention  was  well  answered 
by  Dr.  Francis  Wharton,  in  an  article  in  the  III 
Southern  Law  Review,  730,  December,  1877,  in 
which  he  said:  "Does  the  operative  in  one  case 
out  of  a  hundred  of  those  that  come  before  the 
court  have  the  opportunity  to  inspect  his  asso- 
ciates? Is  he  not,  by  the  laws  of  all  difficult  and 
important  industries,  so  tied  to  his  post  that  he 
has  no  time  for  such  observations?  Even  sup- 
posing that  he  has  time,  has  he  the  means  or 
capacity?  He  is  in  another  part  of  the  same 
building;  or  he  is  in  a  different  building;  or, 
while  he  is  driving  a  locomotive,  his  fellow-oper- 
ative by  whose  negligence  he  is  to  be  injured  is 
turning  a  distant  switch  the  wrong  way;  or, 
while  he  is  waiting  to  couple,  his  fellow-operative 
neglects  to  put  on  the  brakes;  or,  while  he  is 
so  busy  cleaning  the  deck  of  a  great  steamer, 
his  fellow-operative  is  so  negligently  managing 
the  boiler  that  it  bursts.  Even  if  my  fellow- 
servant  stands  by  my  side,  I  may  be  incapable, 


56  LIABILITY  OF  RAILROADS 

from  my  ignorance  of  his  specialty,  of  criticis- 
ing him;  or  his  superiority  in  experience  may 
be  such  to  make  me  distrust  my  capacity  for 
criticism.  It  is  absurd  to  speak  of  the  sufferer,  in 
such  cases  as  these,  inspecting  and  reporting  on 
the  offender's  misconduct.  And  it  is  still  more 
absurd  to  make  such  a  supposition  when  the  of- 
fender is  the  sufferer's  superior,  or  when  the  sub- 
altern knows  that  if  he  reports  the  negligences  of 
his  superiors  he  will  soon  be  without  superiors  to 
report.  We  have,  therefore,  to  reject  the  idea 
that  the  exemption  before  us  rests  upon  the  fact 
that  the.  sufferer,  in  cases  of  this  class,  had  the 
opportunity,  before  the  injury,  of  observing  and 
reporting  on  the  conduct  of  the  person  by  whom 
he  is  to  be  injured." 

In  condemning  the  fellow-servant  rule,  Labatt, 
Master  and  Servant,  vol.  2,  page  2107,  declares 
that  it  "does  not  rest  upon  any  satisfactory  basis, 
logical,  social,  or  economic." 

A  similar  criticism  of  the  doctrines  was  voiced 
by  Mr.  Asquith  in  the  House  of  Commons,  May 
18,  1897,  Parliamentary  Debates,  4th  Series,  Vol. 
XLIV,  in  which  he  said:  " Seventeen  years  ago, 
when  the  first  Employers'  Liability  Bill  was 
passed,  the  doctrine  of  common  employment  was 
taken  for  granted  by  everybody  as  being  a  sound 
and  well-founded  principle,  and  it  was  regarded 
as  rather  a  heretical  thing  to  throw  doubt  upon  it. 


TO   INTERSTATE   EMPLOYEES  57 

But  now  there  is  no  one  so  poor  as  to  do  it 
reverence." 

§  6.  The  Intent  of  the  Act  Clearly  to  Ab- 
rogate the  Fellow-Servant  Doctrine. 
In  cases  arising  on  railroads  engaged  in  inter- 
state traffic  Congress  has,  by  the  Employers' 
Liability  Act  of  1908,  absolutely  rejected  the 
fellow-servant  rule,  and  in  its  place  has  created  a 
remedial  action  conferring  a  remedy  upon  em- 
ployees where  the  common  law  denied  it.  And 
to  this  statute  the  reasoning  upon  which  the 
common  law  was  sustained  should  in  no  manner 
be  applied.1 

1  The  Justices  of  the  Supreme  Judicial  Court  of  Massachusetts 
on  July  24,  1911,  in  an  opinion  in  response  to  the  request  of  the 
Massachusetts  Senate  as  to  the  validity  of  a  bill,  since  enacted, 
known  as  the  Workmen's  Compensation  Act  (Chapter  751  of 
the  Acts  of  1911),  said  in  relation  to  the  first  section  of  said  Act 
which  abolished  the  common  law  defenses  of  contributory 
negligence,  fellow  service  and  assumption  of  risk  in  damage  suits 
for  death  of  or  injury  to  employees  in  the  course  of  their  employ- 
ment: "The  rules  of  law  relating  to  contributory  negligence  and 
assumption  of  risk  and  the  effect  of  negligence  by  a  fellow  servant 
were  established  by  the  courts,  not  by  the  Constitution,  and 
the  Legislature  may  change  them  or  do  away  with  them  alto- 
gether as  defenses  (as  it  has  to  some  extent  in  the  employer's 
[liability]  act)  as  in  its  wisdom  in  the  exercise  of  powers  entrusted 
to  it  by  the  Constitution  it  deems  will  be  best  for  the  '  good  and 
welfare  of  this  Commonwealth.'  See  Missouri  Pacific  Railway  v. 
Mackey,  127  U.  S.  205;  Minnesota  Iron  Co.  v.  Kline,  199  U.  S. 
593.  .  .  .  Construing  the  section  as  we  do  and  as  we  think  that 
it  should  be  construed,  it  seems  to  us  that  there  is  nothing  in  it 
which  violates  any  rights  secured  by  the  State  or  Federal 
Constitutions." 


58  LIABILITY   OF   RAILROADS 

The  Act  is  remedial.  In  construing  legislation 
of  this  character,  the  rule  is  that  the  interpretation 
shall  be  broad  and  liberal  in  order  to  carry  out 
the  legislative  intent.  No  exception,  qualification, 
or  condition  which  may  in  any  manner  limit  or 
control  the  general  words  of  the  Act  itself  is  to  be 
read  into  the  rule  laid  down  by  the  legislature. 
Where  there  is  any  degree  of  fault  upon  the  part 
of  "any  employee"  from  which,  "in  whole  or  in 
part,"  a  casualty  results  to  any  other  employee, 
a  remedy  therefor  is  given  by  the  Act. 

There  is  no  apparent  room  for  any  judicial 
interpretation  which  may  limit  or  control  the 
general  language  and  purpose  of  the  Act,  in  all 
cases  within  its  scope,  to  abrogate  the  defense  of 
common  employment. 

§  7.  Act  Restricts  Application  of  Contrib- 
utory Negligence  and  Assumption  of 
Risk. 

The  intent  of  Congress  to  exact  the  highest 
degree  of  care  on  the  part  of  the  railroads  is  indi- 
cated by  the  provision  of  the  Act  that,  in  any 
case  where  any  statute  enacted  for  safety  of  em- 
ployees is  violated,  the  railroad  is  deprived  of  the 
defenses  of  assumption  of  risk  and  contributory 
negligence. 

Thus,  all  such  safety  statutes  are  given  greater 
efficacy  because  of  the  accountability  arising  from 


TO   INTERSTATE   EMPLOYEES  59 

their  violation.  The  stringent  liability  estab- 
lished by  this  statute  has  a  manifest  tendency  to 
sustain  and  enforce  every  statute  enacted  for  the 
safety  of  employees  and  travelers.  On  this  point 
Judge  Taft,  in  Narramore  v.  Cleveland,  C.  C.  & 
St.  L.  Ry.,  96  Fed.  Rep.  298,  300,  in  speaking  of  a 
statute  of  Ohio  requiring  railroad  companies, 
under  penalty  of  a  fine,  to  block  the  frogs, 
switches,  and  guard  rails  on  their  tracks,  said: 

"The  expression  of  one  mode  of  enforcing  it 
did  not  exclude  the  operation  of  another,  and  in 
many  respects  more  efficacious  means  of  compelling 
compliance  with  its  terms,  to  wit,  the  right  of  civil 
action  against  a  delinquent  railway  company  by 
one  of  the  class  sought  to  be  protected  by  the 
statute  for  injury  caused  by  a  failure  to  comply 
with  its  requirements." 

A  remedy  is  also  given  by  the  Act  where  the 
casualty  alleged  resulted  "in  whole  or  in  part" 
"by  reason  of  any  defect  or  insufficiency"  in 
"cars,  engines,  appliances,  machinery,  track, 
roadbed,  works,  boats,  wharves,  or  other  equip- 
ment" of  the  railroad,  "due  to  its  negligence." 

In  no  case  arising  under  the  statute  is  contribu- 
tory negligence  to  be  an  absolute  bar  to  recovery 
as  at  common  law.  In  case  there  has  been  no 
violation  of  a  statute,  but  there  has  been  negli- 
gence on  the  part  of  the  plaintiff  contributing  in 
any  degree  to  his  injury,  the  damages  otherwise 


60  LIABILITY   OF  RAILROADS' 

recoverable  shall  be  diminished  by  the  jury  in 
proportion  to  the  amount  of  negligence  attribu- 
table to  him. 

If  the  primary  cause  of  the  employee's  injury 
was  his  own  act  or  his  own  negligence,  he  is  not 
entitled  to  recover  under  the  Act.  If  the  primary 
cause  was  the  negligence  of  his  railroad  employer 
or  of  any  of  its  agents  or  employees  other  than 
himself,  then  the  injured  employee  has  his  right 
of  action  even  though  his  own  negligence  con- 
tributed to  the  injury. 

Where  the  act  of  an  individual  is  the  primary 
cause  of  an  injury  to  himself,  he  has  no  right  to 
recover  therefor  at  common  law.  And  this  rule 
is  unimpaired  by  the  provision  of  the  Employers' 
Liability  Act  that  contributory  negligence  shall 
not  bar  a  recovery.  If  the  injury  of  an  employee 
is  primarily  the  result  of  his  own  negligence, 
then  it  cannot  be  said  to  be  "due  to  its  [the 
employer's]  negligence."  Nor  does  such  injury 
result  "wholly  or  in  part  from  the  negligence 
of  any  of  the  officers,  agents,  or  employees  of 
such  carrier"  under  any  proper  interpretation  of 
the  words. 

Negligence  of  the  employee  which  contributes 
to  the  injury,  but  which  is  not  its  primal  cause, 
does  not  bar  a  recovery. 

Negligence  of  an  employee  which,  after  a  pri- 
mary cause  has  been  set  in  motion  by  the  negli- 


TO   INTERSTATE   EMPLOYEES  61 

gence  of  a  carrier  or  its  agents  (other  than  the 
injured  employee),  may  contribute  to  his  injury, 
does  not  bar  a  recovery  under  the  Act. 

The  broad  and  comprehensive  nature  of  the 
relief  to  be  given  for  deaths  and  injuries  in  inter- 
state service  of  railroads  is  indicated  by  the  inter- 
pretation of  its  terms  in  the  minority  report  of 
the  Committee  of  the.  House  of  Representatives. 
At  page  92,  Report  No.  1386  of  the  Sixtieth  Con- 
gress, First  Session,  the  minority  of  the  Com- 
mittee say: 

"  .  .  .  This  bill  greatly  enlarges  the  rights  of 
the  employee  and  imposes  new  and  onerous  bur- 
dens upon  the  employer,  making  him  practically 
an  insurer.  ..." 

This  statement  is  not  literally  correct,  but  it 
is  qualifiedly  true.  For  in  the  unanimous  report 
of  the  Judiciary  Committee  of  the  Senate  (Report 
No.  432,  Sixty-first  Congress,  Second  Session, 
March  22,  1910)  reference  is  made  to  the  "  strin- 
gent liability  upon  the  railroads"  established  by 
the  Act  and  to  the  " policy  to  radically  change"  the 
rules  of  the  common  law  upon  this  subject.  In 
the  report  last  cited  the  Committee,  on  page  2, 
unanimously  say: 

"It  was  the  intention  of  Congress  in  the  enact- 
ment of  this  law  originally,  and  it  may  be  pre- 
sumed to  be  the  intention  of  the  present  Congress, 
to  shift  the  burden  of  the  loss  resulting  from  these 


62  LIABILITY  OF   RAILROADS 

casualties  from  'those  least  able  to  bear  it/  and 
place  it  upon  those  who  can,  as  the  Supreme 
Court  said  in  the  Taylor  Case,  210  U.  S.  281,  28 
Sup.  Ct.  Rep.  616,  'measurably  control  their 
causes.'  " 

Thus  if  the  tenor  of  the  Act  and  the  purpose 
and  intent  of  Congress  are  to  be  given  due  weight, 
it  is  manifest  that  the  statute  is  to  be  broadly  and 
liberally  construed  to  confer  upon  the  employee's 
dependents  a  remedy  for  his  death,  or  upon  any 
employee  a  remedy  for  injuries  received,  without 
regard  to  any  heretofore  existing  rule  of  the  com- 
mon law  which  by  reason  of  the  fellow-servant 
doctrine  denied  a  remedy  to  him  of  them.  And 
the  modification  of  the  doctrine  of  assumption  of 
risk  and  contributory  negligence  is  to  be  applied 
in  full  accord  with  the  spirit  of  the  Act.  There 
seems  to  be  no  justification  for  any  judicial  con- 
struction which  shall  minimize  any  of  the  reme- 
dial features  of  this  legislation., 


TO    INTERSTATE   EMPLOYEES  63 


CHAPTER   III 

NATURE  OF  ACTION 

§  8.  Act  Authorizes  New  Plenary  Action. 

The  Act  does  not  merely  deprive  the  employer 
of  an  arbitrary  defense.  Plummer  v.  Northern  Pac. 
Ry.  Co.,  152  Fed.  Rep.  206.  A  new  plenary  action 
is  created  by  the  statute.  All  the  terms  and  con- 
ditions for  its  enforcement  are  solely  dependent 
upon  the  Federal  Act,  and  are  not  at  all  modified 
or  controlled  by  any  conflicting  statutory  or 
common-law  rules  of  any  of  the  States.1    Fulgham 

1  Some  recent  cases  under  the  Employers'  Liability  Law  are 
the  following:  Thompson  v.  Wabash  R.  Co.,  184  Fed.  Rep.  554, 
holding  that  a  widow  cannot  maintain  an  action  under  the  Act 
and  that  suit  must  be  brought  by  the  executor  or  administrator 
of  deceased's  estate. 

In  Pederson  v.  Delaware,  L.  &  W.  R.  Co.,  184  Fed.  Rep.  737, 
it  was  held  that  where  the  plaintiff  was  injured  by  a  purely  local 
train  he  could  not  recover  under  the  Federal  Act.  The  attempt  to 
evade  the  force  and  effect  of  the  federal  law  by  establishing  a 
line  of  demarcation  between  the  interstate  and  intrastate  activ- 
ities of  a  railroad  may  afford  an  opening  for  a  ruling  that  where 
such  divergence  exists,  the  employment  is  not  a  common  em- 
ployment and  therefore  that  the  employee  may  recover  at 
common  law.  If  the  employment  may  be  segregated  on  such  lines, 
it  cannot  logically  be  held  to  be  a  "  common  employment "  so  as 
to  relieve  the  master.  See  discussion  of  this  subject  infra,  page 
203. 

That  a  wife  temporarily  separated  from  her  husband  at  the  time 
he  was  killed  may  be  the  beneficiary  of  an  action  under  the  Act 


64  LIABILITY   OF   RAILROADS 

v.  Midland  Valley  R.  Co.,  167  Fed.  Rep.  660,  and 
cases  there  cited. 

Although  the  action  given  under  the  Act  may- 
be brought  in  a  court  of  a  State  which  has  juris- 
diction of  the  parties,  and  although  the  action 
must  be  tried  under  the  rules  of  practice  and  pro- 
cedure prevailing  in  the  district  where  it  is  brought, 
all  substantive  rights  and  remedies  conferred  by 
the  Act  are  dependent  upon  the  federal  law  alone. 
The  rule  of  liability  is  prescribed  solely  by  the 
Federal  Act.  The  Act  creates  a  new  right  and  a 
new  obligation.  It  changes  the  existing  rules  of 
law  and  permits  "the  recovery  of  damages  for 
injuries  for  which  there  could  be  no  recovery 
at  common  law  or  under  pre-existing  statutes." 
Watson,  Admx.,  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co., 
169  Fed.  Rep.  942. 

for  his  wrongful  death  was  held  in  Dunbar  v.  Charleston  &  AT.  C. 
Ry.  Co.,  186  Fed.  Rep.  175. 

In  Troxell  v.  Delaware,  L.  &  W.  R.  Co.,  180  Fed.  Rep.  871, 
876,  the  Court  said:  "We  are  inclined  to  the  view  that  in  a  situ- 
ation like  the  one  at  bar,  where  the  carrier  is  engaged  both  in 
intra  and  interstate  commerce,  and  negligently  kills  an  employee 
in  similar  employment,  that  the  personal  representative  of  the 
decedent  may  institute  a  suit  under  the  federal  act,  or  action 
may  be  brought  under  a  state  act  which  is  not  in  conflict  with 
the  federal  act." 

That  the  amendment  approved  April  5,  1910,  is  not  retroactive 
and  does  not  apply  to  actions  then  pending,  see  New  v.  Baltimore 
<k  O.  R.  Co.,  181  Fed.  Rep.  698. 


TO   INTERSTATE   EMPLOYEES  65 

§  9.  Federal  Act,  where  Applicable,  is  Ex- 
clusive. 

Not  only  does  this  Act  exclude  the  concurrent  ex- 
istence of  any  common-law  action  for  negligence 
arising  out  of  the  facts  necessary  to  maintain  an 
action  under  its  provisions,  but  all  statutes  and  laws 
of  the  States  by  virtue  of  which  a  right  of  action  here- 
tofore existed  to  enable  an  interstate  employee  to  re- 
cover damages  for  personal  injuries  against  an  inter- 
state carrier  are  now  inoperative  as  to  such  injuries. 

"When  the  Act  is  analyzed  it  becomes  apparent 
that  it  was  the  purpose  of  the  Congress  to  confer 
rights  and  benefits  upon  the  injured  employee 
which  were  denied  him  by  the  common  law;  and 
hence  the  existence  of  a  common-law  right  of 
action  on  the  part  of  an  injured  employee  cannot, 
in  reason,  be  claimed  in  the  presence  of  this  Act 
of  Congress,  Indeed,  the  Act  is  the  law,  and  the 
only  law,  under  which  suits  like  the  present  one 
may  be  brought.  It  is  the  law  of  the  case  by 
which  the  rights  of  the  employee  and  the  liability 
of  the  carrier  are  measured.  The  very  subject- 
matter  of  the  controversy  is  federal."  Cound  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  173  Fed.  Rep.  527. 

As  said  in  Gibbons  v.  Ogden,  9  Wheat.  1,  at  pp. 
210,211: 

"The  nullity  of  an  act,  inconsistent  with  the 
Constitution,  is  produced  by  the  declaration  that 
the  Constitution  is  the  supreme  law.     The  ap- 


66  LIABILITY   OF   RAILROADS 

propriate  application  of  that  part  of  the  clause 
which  confers  the  same  supremacy  on  laws  and 
treaties  is  to  such  acts  of  the  state  legislature  as 
do  not  transcend  their  powers,  but,  though 
enacted  in  the  execution  of  acknowledged  state 
powers,  interfere  with  or  are  contrary  to  the  laws 
of  Congress,  made  in  pursuance  of  the  Constitu- 
tion, or  some  treaty  made  under  the  authority  of 
the  United  States.  In  every  such  case,  the  act 
of  Congress,  or  the  treaty,  is  supreme;  and  the 
law  of  the  State,  though  enacted  in  the  exercise 
of  powers  not  controverted,  must  yield  to  it." 

§  10.  Necessity  of  Pleading  Basis  for  Fed- 
eral Right. 
There  is  apparently  some  conflict  of  authority 
upon  the  question  whether  or  not  it  is  essential 
that  the  declaration  shall  indicate  the  plain- 
tiff's reliance  upon  the  federal  right  conferred 
upon  him  by  the  statute.  It  has  been  held 
that  in  the  federal  courts  it  is  not  necessary 
to  plead  the  Act  specially  or  to  make  refer- 
ence to  its  provisions.  Cound  v.  Atchison,  T.  & 
S.  F.  Ry.  Co.,  173  Fed.  Rep.  527;  Voelker  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  116  Fed.  Rep.  867, 
129  Fed.  Rep.  522.  In  a  proceeding  under  a 
similar  statute  it  was  decided  by  the  Supreme 
Court  of  Kansas  that  "the  petition  stated  no 
cause  of  action  under  the  federal  statute,"  and 


TO   INTERSTATE   EMPLOYEES  67 

that  plaintiff,  therefore,  could  not  prevail  by 
reason  of  his  right  to  rely  on  a  federal  statute. 
Brinkmeier  v.  Missouri  Pacific  Ry.  Co.,  81  Kan. 
101,  105  Pac.  Rep.  221.  This  case  has  been  carried 
on  writ  of  error  to  the  Supreme  Court  of  the 
United  States,  where  it  is  pending.  Its  deter- 
mination will  settle  the  question  of  sufficiency  of 
a  pleading  in  an  action  based  upon  a  federal  right. 
In  view  of  the  recent  decision  in  the  case  of 
Allen  v.  Tuscarora  Vol.  R.  Co.,  229  Pa.  97  (July 
1,  1910)  (citing  Union  Pacific  Ry.  Co.  v.  Wyler, 
158  U.  S.  285,  Boston  &  Maine  R.  Co.  v.  Hurd, 
108  Fed.  Rep.  116,  Wabash  R.  Co.  v.  Bhymer, 
214  111.  579,  and  Exposition  Cotton  Mills  v.  Western 
&  Atlantic  R.  Co.,  83  Ga.  441),  it  is  important  that 
the  declaration  should  clearly  and  plainly  dis- 
close an  intention  on  the  part  of  the  plaintiff  to 
base  his  right  of  recovery  under  the  federal  statute. 
The  cases  above  cited  deny  the  right  to  a  plain- 
tiff to  amend  his  declaration  asserting  a  right  of 
recovery  at  common  law  so  that  a  right  to  recover 
under  a  statute  may  be  availed  of.  In  the  Wyler 
Case,  158  U.  S.  285,  Mr.  Justice  White  discusses 
the  right  to  amend  under  such  circumstances  and 
holds  that  "As  the  first  petition  proceeded  under 
the  general  law  of  master  and  servant  and  the  sec- 
ond petition  asserted  a  right  to  recover  in  dero- 
gation of  that  law,  in  consequence  of  the  Kansas 
statute,  it  was  a  departure  from  law  to  law." 


68  LIABILITY   OF   RAILROADS 


CHAPTER   IV 

WHEN    IS  A    RAILROAD  ENGAGED  IN  INTERSTATE 

commerce  ? 

§  11.   In  General. 

The  Employers'  Liability  Act  of  1908  provides 
a  remedy  for  death  or  injury  suffered  by  an  em- 
ployee against  common  carriers  by  railroad  en- 
gaged in  interstate  commerce.  The  question, 
therefore,  arises  as  to  when  a  railroad  is  engaged 
in  interstate  commerce. 

Judge  Cooley  in  an  address  before  the  First 
General  Conference  of  Railroad  Commissioners  at 
Washington,  March,  1889,  spoke  as  follows: 
"But  there  is  scarcely  a  line  of  road  in  the  coun- 
try so  short  or  so  insignificant  that  the  method  in 
which  its  operations  shall  be  conducted  is  not  of 
something  more  than  local  importance,  or  the 
character  of  its  regulation  of  some  concern  to 
business  interests  beyond  the  state  limits.  It 
may  be  a  link  in  a  long  line  extending  through  two 
or  more  States.  It  may  be  the  principal  or  per- 
haps the  sole  means  of  transportation  for  the 
products  of  a  mine  or  other  important  industry 
which  supplies  many  States,  but  whether  of 
greater   or  less   importance,   it   has   relations   to 


TO   INTERSTATE   EMPLOYEES  69 

other  roads  which  are  not  and  cannot  be  wholly 
limited  within  any  political  division  of  the  country, 
however  extensive  it  may  be;  even  the  little 
Catskill  Mountain  Railroad  by  the  issue  of  coupon 
tickets  to  San  Francisco  may  in  a  sense  become  a 
part  of  a  transcontinental  highway,  and  the  citizen 
from  the  Pacific  Coast  who  applies  for  one  of  the 
tickets  has  an  interest  in  the  treatment  he  shall 
receive  in  respect  to  it,  which  is  precisely  the  same 
that  it  would  be  if  all  the  roads  of  the  country 
were  one  in  ownership  and  in  management." 
A  railroad  is  engaged  in  interstate  commerce 
a.  When  its  line  extends  into  and  is  operated 
in  two  or  more  States; 

6.   When  its  line  is  wholly  within  the  limits  of 
a  single  State,  if  tickets  for  passengers  are  sold, 
or  bills  of  lading  for  freight  are  issued,  for  continu- 
ous transportation  to  other  States  over  its  own  / 
and  connecting  lines;  >v 

c.  Though  its  line  is  wholly  within  a  single  \ 
State  and  though  no  passenger  tickets  for  passage    \ 
outside  the  State  are  sold,  and  though  no  bills  of     \ 
lading  are  issued  for  the  carriage  of  freight  beyond 
the  lines  of  the  State,  if  it  generally  transports  in 
continuous  transit  merchandise  from  a  point  of 
origin  outside  the  State  to  a  point  within  the 
State,  or  from  a  point  within  the  State  in  con-     / 
tinuous  journey  to  a  point  without  the  State;  ^* 

d.  If,    though    its   line   is  wholly    within  the  J 


70  LIABILITY   OF   RAILROADS 

limits  of  a  single  State,  it  carries,  under  contract 
with  an  express  company,  packages  in  transit 
between  States; 

e.  If,  though  wholly  within  the  limits  of  a 
single  State,  it  transports  over  its  line  cars  loaded 
with  interstate  traffic; 

/.  If  its  line,  though  wholly  within  a  single 
State,  is  a  link  in  an  interstate  highway; 

g.  Quaere:  Is  a  line  of  railroad,  otherwise  local, 
made  interstate  by  the  carriage  of  the  United 
States  mail?     In  re  Debs,  158  U.  S.  564. 

§  12.  International  Text  Book  Company 
Case. 

In  the  case  of  International  Textbook  Company 
v.  Pigg,  217  U.  S.  91,  30  Sup.  Ct.  Rep.  481,  it  was 
held  that  a  company  engaged  in  the  business  of 
imparting  instruction  "by  means  of  correspond- 
ence through  the  mails  between  the  company  at 
its  office  .  .  .  and  the  applicant  at  his  residence 
in  another  State,"  was  engaged  in  interstate 
commerce. 

In  the  course  of  the  opinion  Mr.  Justice  Harlan 
said:  "It  is  true  that  the  business  in  which  the 
International  Textbook  Company  is  engaged  is 
of  a  somewhat  exceptional  character,  but,  in  our 
judgment,  it  was,  in  its  essential  characteristics, 
commerce  among  the  States  within  the  meaning 
of   the    Constitution   of   the  United   States.      It 


TO   INTERSTATE  EMPLOYEES  71 

involved,  as  already  suggested,  regular  and  prac- 
tically continuous  intercourse  between  the  Text- 
book Company  located  in  Pennsylvania,  and  its 
scholars  and  agents  in  Kansas  and  other  States. 
That  intercourse  was  conducted  by  means  of  cor- 
respondence through  the  mails  with  such  agents 
and  scholars.  While  this  mode  of  imparting  and 
acquiring  an  education  may  not  be  such  as  is 
commonly  adopted  in  this  country,  it  is  a  lawful 
mode  to  accomplish  the  valuable  purpose  the 
parties  have  in  view.    More  than  that :  this  mode 

—  looking  at  the  contracts  between  the  Textbook 
Company  and  its  scholars  —  involved  the  trans- 
portation from  the  State  where  the  school  is  located 
to  the  State  in  which  the  scholar  resides,  of  books, 
apparatus  and  papers,  useful  or  necessary  in  the 
particular  course  of  study  the  scholar  is  pursuing 
and  in  respect  of  which  he  is  entitled,  from  time 
to  time,  by  virtue  of  his  contract,  to  information 
and  direction.  Intercourse  of  that  kind,  between 
parties  in  different  States  —  particularly  when  it 
is  in  execution  of  a  valid  contract  between  them 

—  is  as  much  intercourse,  in  the  constitutional 
sense,  as  intercourse  by  means  of  the  telegraph  — 
'a  new  species  of  commerce,'  to  use  the  words 
of  this  court  in  Pensacola  Telegraph  Co.  v.  Western 
Union  Telegraph  Co.,  96  U.  S.  1,  9.  In  the  great 
case  of  Gibbons  v.  Ogden,  9  Wheat.  1,  189,  this 
court,  speaking  by  Chief  Justice  Marshall,  said, 


72  LIABILITY   OF   RAILROADS 

'Commerce,  undoubtedly,  is  traffic,  but  it  is 
something  more:  it  is  intercourse.'  Referring  to 
the  constitutional  power  of  Congress  to  regulate 
commerce  among  the  States  and  with  foreign 
countries,  this  court  said  in  the  Pensacola  Case, 
just  cited,  that  'it  is  not  only  the  right  but  the 
duty  of  Congress  to  see  to  it  that  intercourse  among 
the  States  and  the  transmission  of  intelligence  are 
not  obstructed  or  unnecessarily  encumbered  by 
State  legislation.'  This  principle  has  never  been 
modified  by  any  subsequent  decision  of  this  court. 
"  The  same  thought  was  expressed  in  Western 
Union  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  356, 
7  Sup.  Ct.  Rep.  1126,  where  the  Court  said:  'Other 
commerce  deals  only  with  persons,  or  with  visible 
and  tangible  things.  But  the  telegraph  transports 
nothing  visible  and  tangible;  it  carries  only 
ideas,  wishes,  orders,  and  intelligence.'  It  was  said 
in  the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit,  speaking  by  Judge  Sanborn,  in  Butler 
Bros.  Shoe  Co.  v.  United  States  Rubber  Co.,  156 
Fed.  Rep.  1,  17,  that  'all  interstate  commerce  is 
not  sales  of  goods.  Importation  into  one  State 
from  another  is  the  indispensable  element,  the 
test,  of  interstate  commerce;  and  every  negotia- 
tion, contract,  trade,  and  dealing  between  citizens 
of  different  States,  which  contemplates  and  causes 
such  importation,  whether  it  be  of  goods,  persons, 
or  information,  is  a  transaction  of  interstate  com- 


TO   INTERSTATE   EMPLOYEES  73 

merce.'  If  intercourse  between  persons  in  differ- 
ent States  by  means  of  telegraphic  messages  con- 
veying intelligence  or  information  is  commerce 
among  the  States,  which  no  State  may  directly 
burden  or  unnecessarily  encumber,  we  cannot 
doubt  that  intercourse  or  communication  between 
persons  in  different  States,  by  means  of  corre- 
spondence through  the  mails,  is  commerce  among 
the  States  within  the  meaning  of  the  Constitu- 
tion, where,  as  here,  such  intercourse  and  com- 
munication really  relates  to  matters  of  regular, 
continuous  business  and  to  the  making  of  con- 
tracts and  the  transportation  of  books,  papers, 
etc.,  appertaining  to  such  business.  In  our  further 
consideration  of  this  case  we  shall  therefore  as- 
sume that  the  business  of  the  Textbook  Com- 
pany, by  means  of  correspondence  through  the 
mails  and  otherwise  between  Kansas  and  Pennsyl- 
vania, was  interstate  in  its  nature." 

If  intercourse  by  means  of  the  mail  is  interstate 
commerce,  then  it  would  seem  to  follow  that  the 
carriage  of  the  mails  is  interstate  commerce. 

§  13.     Authorities  upon  Decided  Issues. 

The  liability  of  a  railroad  company,  the  lines  of 
which  are  devoted  to  the  service  of  interstate 
transportation  is  not  affected  by  the  fact  that  the 
traffic  consists  of  products  or  materials  owned  by 
the  carrying  company.     United  States  v.  Chicago, 


74  LIABILITY  OF   RAILROADS 

M.  &  St.  P.  Ry.  Co.,  149  Fed.  Rep.  486;  United 
States  v.  Southern  Ry.  Co.,  Kent's  Index-Digest 
of  Decisions  under  the  Federal  Safety  Appliance 
Acts,  269. 

The  interstate  character  of  a  shipment  is  not 
changed  by  interrupting  the  course  of  transit  at 
the  State  line.  Gulf,  C.  &  S.  F.  R.  Co.  v.  Fort 
Grain  Co.,  73  S.  W.  Rep.  845;  United  States  v. 
Colorado  &  N.  W.  R.  Co.,  157  Fed.  Rep.  321 
(now  pending  decision  by  the  Supreme  Court); 
United  States  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
149  Fed.  Rep.  486. 

The  interstate  character  of  a  shipment  attaches 
the  moment  it  is  put  on  a  car  and  begins  to  move 
from  a  point  in  one  State  destined  to  a  point  in 
another  State.  And  that  interstate  character 
continues  to  inhere  in  the  shipment  until  its  final 
delivery  is  effected.  It  may,  therefore,  be  said 
that  a  railroad  company  is  engaged  in  interstate 
commerce  during  the  entire  period  intervening 
between  the  loading  of  a  shipment  destined  to  be 
interstate  and  the  surrender  by  the  consignee  of 
his  bill  of  lading.  McNeil  v.  Southern  Ry.  Co., 
202  U.  S.  543,  26  Sup.  Ct.  Rep.  722;  In  re  Greene, 
52  Fed.  Rep.  104;  United  States  v.  Hopkins,  82 
Fed.  Rep.  529;  United  States  v.  Boyer,  85  Fed. 
Rep.  425;  United  States  v.  Geddes,  131  Fed.  Rep. 
452;  Belt  Ry.  Co.  of  Chicago  v.  United  States,  168 
Fed.  Rep.  542;   United  States  v.  Colorado  &  N.  W. 


TO   INTERSTATE   EMPLOYEES  75 

Ry.  Co.,  157  Fed.  Rep.  321;  United  States  v. 
Central  of  Ga.  Ry.  Co.,  157  Fed.  Rep.  893;  United 
States  v.  Southern  Ry.  Co.,  Kent's  Index-Digest 
of  Decisions  under  the  Federal  Safety  Appliance 
Acts,  269;  St.  Louis  &  S.  F.  Ry.  v.  Delk,  158  Fed. 
Rep.  931;  Chicago,  M.  &  St.  Paul  Ry.  Co.  v. 
Voelker,  129  Fed.  Rep.  522;  Pacific  Coast  Ry. 
Co.  v.  United  States,  173  Fed.  Rep.  448. 

The  mere  participation  by  a  railroad  in  the 
transportation  of  traffic  destined  from  a  point  in 
one  State  to  a  point  in  another  State,  from  or 
to  a  point  in  a  State  to  or  from  a  point  in  a  Terri- 
tory of  the  United  States,  or  between  two  or  more 
points  in  a  Territory,  subjects  the  carrier  to  the 
regulation  of  the  Federal  Government.  This  is 
true  whether  the  participation  consists  in  a  divi- 
sion under  a  joint  rate  of  transportation,  or  if  the 
lines  of  the  carrier  in  question  constitute  a  link 
in  a  through  route  to  such  interstate  transportation. 
United  States  v.  Standard  Oil  Co.,  155  Fed.  Rep. 
305;  Interstate  Commerce  Commission  v.  Cincin- 
nati N.  0.  &  T.  P.  Ry.,  162  U.  S.  184,  16  Sup.  Ct. 
Rep.  700;  Parsons  v.  Chicago  &  N.  W.  Ry.  Co., 
167  U.  S.  447,  17  Sup.  Ct.  Rep.  887;  Chicago  & 
N.  W.  Ry.  Co.  v.  Osborne,  52  Fed.  Rep.  912;  Tozer 
v.  United  States,  52  Fed.  Rep.  917;  Texas  &  N. 
0.  R.  Co.  et  al.  v.  Sabine  Tram  Co.,  121  S.  W. 
Rep.  256;  Belt  Line  Ry.  of  Chicago  v.  United 
States,  168  Fed.  Rep.  542;  Norfolk  &  W.R.  Co.  v. 


76  LIABILITY  OF   RAILROADS 

Pennsylvania,  136  U.  S.  114,  10  Sup.  Ct.  Rep. 
958. 

An  interesting  question  has  arisen  in  regard  to 
the  interstate  character  of  a  shipment  transported 
from  a  point  in  one  State  through  a  contiguous 
State  to  another  point  in  the  State  of  origin.  The 
affirmative  of  this  proposition  is  sustained  in  the 
following  cases:  Sternberger  v.  Cape  Fear  and  Y. 
V.  R.  Co.,  7  S.  E.  Rep.  836;  State  v.  Chicago,  St. 
P.,  M.  and  0.  R.  Co.,  40  Minn.  267;  New  Orleans 
Cotton  Ex.  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co., 
2  I.  C.  C.  Rep.  289;  Kansas  C.  S.  Ry.  v.  R.  R. 
Com.  of  Arkansas,  106  Fed.  Rep.  359;  United 
States  v.  Erie  R.  Co.,  166  Fed.  Rep.  352;  Shelby 
Ice  &  Fuel  Co.  v.  Southern  Ry.  Co.,  60  S.  E.  Rep. 
721;  Davis  v.  Southern  Ry.  Co.,  60  S.  E.  Rep.  722; 
St.  Louis  &  S.  F.  R.  Co.  v.  State,  113  S.  W.  Rep. 
203;  Mires  v.  St.  Louis  &  S.  F.  Ry.  Co.,  114  S.  W. 
Rep.  1052;  Hanley  v.  Kansas  City  Southern  Ry. 
Co.,  187  U.  S.  617,  23  Sup.  Ct.  Rep.  214. 

The  negative  aspect  of  the  proposition  is  sus- 
tained by  the  following  cases:  Commonwealth  v. 
Lehigh  Valley  R.  Co.,  17  Atl.  Rep.  179;  Lehigh 
Valley  R.  Co.  v.  Commonwealth,  18  Atl.  Rep.  125; 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134 
U.  S.  418,  10  Sup.  Ct.  Rep.  462,  702;  Lehigh 
Valley  R.  Co.  v.  Pennsylvania,  145  U.  S.  192,  12 
Sup.  Ct.  Rep.  806;  Cincinnati  Packet  Co.  v.  Bay, 
200  U.  S.  179,  26  Sup.  Ct.  Rep.  208;   United  States 


TO   INTERSTATE   EMPLOYEES  77 

v.  Lehigh  Valley  R.  Co.,  115  Fed.  Rep.  373;  Camp- 
bell v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  53  N.  W.  Rep. 
323;  Seawell  et  al.  v.  Kansas  City,  Fort  S.  &  M. 
R.  Co.,  24  S.  W.  Rep.  1002. 

The  amenability  of  railroads  to  federal  regula- 
tion arises  from  their  participation  in  the  carriage 
of  interstate  traffic  and  extends  to  corporations,  the 
lines  of  which  are  confined  within  the  limits  of  a 
single  State,  if  such  carriers  accept  through  traffic 
to  or  from  a  point  in  another  State.  As  held  in 
Ex  parte  Koehler,  30  Fed.  Rep.  867,  the  transpor- 
tation of  property  from  one  State  to  another  is 
interstate  commerce,  whether  the  carriers  en- 
gaged in  moving  it  or  the  vehicles  on  which  it  is 
borne,  cross  the  line  of  a  State  or  not.  This  prin- 
ciple has  been  enunciated  in  a  considerable  number 
of  decisions  in  the  state  and  federal  courts,  of 
which  the  following  are  typical:  United  States  v. 
Colorado  &  N.  W.  R.  Co.,  157  Fed.  Rep.  321; 
United  States  v.  Pacific  Coast  Ry.  Co.,  173  Fed. 
Rep.  448,  453;  Texas  &  N.  0.  R.  Co.  et  al.  v.  Sab- 
ine Tram  Co.,  121  S.  W.  Rep.  256;  United  States 
v.  Coombs,  37  U.  S.  72;  Covington  &  C.  Bridge 
Co.  v.  Kentucky,  154  U.  S.  204,  14  Sup.  Ct.  Rep. 
1087;  Augusta  S.  R.  Co.  v.  Wrightsville  and  T.  R. 
Co.,  74  Fed.  Rep.  522;  Interstate  Stock  Yards  Co. 
v.  Indianapolis  U.  Ry.  Co.,  99  Fed.  Rep.  472; 
United  States  v.  Delaware  L.  &  W.  R.  Co.,  152 
Fed.  Rep.  269;  Interstate  Commerce  Commission 


78  LIABILITY  OF  RAILROADS 

v.  Bellaire,  Z.  &  C.  Ry.  Co.,  77  Fed.  Rep.  942; 
United  States  v.  Colorado  &  N.  W.  R.  Co.,  157 
Fed.  Rep.  321;  United  States  v.  Illinois  Term. 
R.  Co.,  168  Fed.  Rep.  546;  Texas  &  P.  Ry.  Co. 
v.  Clark,  23  S.  W.  Rep.  698;  Houston  D.  Nav.  Co. 
v.  Insurance  Co.  of  N.  A.,  32  S.  W.  Rep.  889; 
Texas  &  P.  Ry.  Co.  v.  Avery,  33  S.  W.  Rep.  704; 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Armstrong,  43 
S.  W.  Rep.  614;  State  v.  Southern  Kansas  Ry. 
Co.  of  Texas,  49  S.  W.  Rep.  252;  Texas  &  P.  Ry. 
Co.  v.  Davis,  54  S.  W.  Rep.  381 ;  Berry  Coal  &  Coke 
Co.  v.  Chicago,  P.  &  St.  L.  Ry.  Co.,  92  S.  W.  Rep. 
714;  Porter  v.  St.  Louis  S.  W.  Ry.  Co.,  95  S.  W. 
Rep.  453;  Missouri,  Kansas,  &  T.  Ry.  Co.  v.  New 
Era  Milling  Co.,  101  Pac.  Rep.  1011;  Cutting  v. 
Fla.  Ry.  &  Nav.  Co.  et  al,  46  Fed.  Rep.  641; 
Interstate  Commerce  Commission  v.  Seaboard  A.  L. 
Ry.  Co.,  82  Fed.  Rep.  563;  Perkins  v.  Northern 
Pacific  Ry.  Co.,  155  Fed.  Rep.  445. 

Contra:  See  United  States  v.  Geddes,  131  Fed. 
Rep.  452;  Interstate  Commerce  Commission  v. 
Chicago,  K.  &  S.  R.  Co.,  81  Fed.  Rep.  783;  Texas 
&  P.  Ry.  Co.  v.  Interstate  Commerce  Commission, 
162  U.  S.  197,  16  Sup.  Ct.  Rep.  666;  Armour 
Packing  Co.  v.  United  States,  209  U.  S.  56,  28  Sup. 
Ct.  Rep.  428;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Texas, 
204  U.  S.  403,  27  Sup.  Ct.  Rep.  360. 

In  the  case  of  Gulf,  Colorado  &  Santa  Fe  Ry.  Co. 
v.  Texas,  204  U.  S.  403,  the  Supreme  Court  held 


TO  INTERSTATE  EMPLOYEES        79 

that  a  railroad  company  which  transported  a 
shipment  from  the  point  of  its  original  destination 
to  another  point  in  the  same  State,  even  though 
the  shipment  had  in  point  of  fact  originated  in 
another  State,  was  not  on  that  account  a  "  railroad 
engaged  in  interstate  commerce."  But  this  was 
clearly  a  case  of  reshipment  by  a  new  consignor. 

Any  railroad  company,  irrespective  of  the  limi- 
tation of  its  lines  within  the  boundary  of  a  single 
State,  which  participates  in  any  degree  what- 
soever in  the  transportation  of  interstate  commerce 
is  a  " railroad  engaged  in  interstate  commerce." 
This  is  the  logical  result  of  the  reasoning  of  the 
Supreme  Court  in  the  case  of  The  Daniel  Ball,  10 
Wall.  557,  in  which  case  the  court  said:  "When- 
ever a  commodity  has  begun  to  move  as  an  article 
of  trade  from  one  State  to  another,  commerce  in 
that  commodity  has  commenced." 

Transportation  of  freight  from  a  point  in  one 
State  to  a  point  in  another  is  interstate  commerce, 
and  such  shipment  does  not  become  intrastate 
commerce  when  it  reaches  the  state  line,  but  con- 
tinues interstate  commerce  until  delivered  at 
the  final  place  of  destination.  Rhodes  v.  Iowa,  170 
U.  S.  412,  18  Sup.  Ct.  Rep.  664. 

But  when  the  commodity  transported  has 
reached  the  termination  of  its  journey,  and  has 
been  delivered  to  the  consignee,  it  ceases  to  be  a 
subject  of  interstate  commerce,   and  the  subse- 


80  LIABILITY   OF   RAILROADS 

quent  shipment  from  the  point  at  which  it  has 
been  delivered  to  another  point  in  the  same  State 
is  an  intrastate  shipment.  Coe  v.  Erroll,  116  U.  S. 
517,  6  Sup.  Ct.  Rep.  475;  Ft.  Worth  &  D.  C.  Ry. 
Co.  v.  Whitehead,  6  Texas  Civil  Appeals  595; 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Interstate 
Commerce  Commission,  162  U.  S.  184,  16  Sup.  Ct. 
Rep.  700;  Chicago  &  N.  W.  Ry.  Co.  v.  Osborne, 
52  Fed.  Rep.  912;  Interstate  Commerce  Commission 
v.  Bellaire  Z.  &  C.  Ry.,  77  Fed.  Rep.  942;  Interstate 
Commerce  Commission  v.  Detroit,  G.  H.  &  M.  Ry. 
Co.,  167  U.  S.  633,  17  Sup.  Ct.  Rep.  986;  Gulf,  C.  & 
S.  F.  Ry.  Co.  v.  Miami  S.  S.  Co.,  86  Fed.  Rep.  407. 
A  railroad  company  engaged  in  a  switching 
movement  of  interstate  cars  is  a  railroad  engaged 
in  interstate  commerce.  Johnson  v.  Southern 
Pacific  Co.,  196  U.  S.  1,  25  Sup.  Ct.  Rep.  158; 
Rosney  v.  Erie  R.  Co.,  135  Fed.  Rep.  311;  Wabash 
R.  Co.  v.  United  States,  168  Fed.  Rep.  1;  Belt 
Ry.  Co.  of  Chicago  v.  United  States,  168  Fed.  Rep. 
542;  Chicago,  M.  &  St.  P.  Co.  v.  United  States, 
165  Fed.  Rep.  423;  Union  Stock  Yards  Co.  of 
Omaha  v.  United  States,  169  Fed.  Rep.  404; 
United  States  v.  Pittsburgh,  C.  C.  &  St.  L.  Ry. 
Co.,  143  Fed.  Rep.  360;  Crawford  v.  New  York 
C.  &  II.  R.  R.  Co.,  10  Am.  Neg.  Rep.  166;  Mobile, 
J.  &  K.  C.  R.  Co.  v.  Bromberg,  37  Southern  Rep. 
395;  United  States  v.  Northern  Pacific  Terminal 
Co.,   144  Fed.  Rep.  861. 


TO  INTERSTATE  EMPLOYEES        81 

§  14.   Summary  from  Authorities. 

From  a  review  of  the  foregoing  it  may  be  said 
generally  that  a  railroad  company  is  "engaged  in 
interstate  commerce" 

a.  if  it  engages  generally  in  the  transporta- 
tion of  passengers  or  freight  or  express  traffic 
from  one  State  or  Territory  into  or  through  some 
other  State  or  Territory,  or  from  the  District  of 
Columbia  into  or  through  any  State  or  from  any 
State  into  the  District  of  Columbia; 

b.  if  it  operates  in  one  State  alone  but  sells 
passenger  or  freight  or  express  transportation 
over  its  line  to  points  in  another  State  or  States; 

c.  if  it  handles  over  its  line  freight  billed  through 
and  on  its  journey  to  States  other  than  the  State 
from  which  such  traffic  is  billed  and  originates; 

d.  if  it  receives  and  forwards  traffic  in  continu- 
ous journey  from  one  State  to  another;   or 

e.  if  it  passes  through  a  contiguous  State  en 
route  from  one  point  in  a  State  to  another  point 
within  the  same  State. 

A  railroad  engaged  in  any  transportation  of 
freight  or  passengers  in  any  Territory,  or  in  the 
District  of  Columbia,  is  within  the  scope  of  the 
Act. 


82  LIABILITY   OF   RAILROADS 

§  15.    Method  of  Proof. 

A  railroad,  as  to  any  of  its  local  branches,  is 
engaged  in  interstate  commerce  if,  by  filing  sched- 
ules of  rates  for  interstate  traffic  to  and  from  any 
of  the  stations  on  such  local  branch,  it  holds  itself 
out  generally  as  ready  to  transact  interstate  busi- 
ness over  such  local  branch.  The  freight  and 
passenger  tariffs  are  open  to  public  inspection  on 
each  of  the  interstate  railroads  of  the  country, 
and  are  also  filed  with  the  Interstate  Commerce 
Commission  at  Washington. 

Proof  of  the  movement  of  interstate  traffic  over 
the  tracks  of  almost  every  local  subdivision  of  an 
interstate  railroad  may  be  secured  by  the  service 
of  a  subpcena  duces  tecum  upon  the  official  having 
custody  of  the  records  of  freight  and  passenger 
traffic  over  such  subdivision. 

Proof  of  the  transaction  of  general  interstate 
traffic  over  any  particular  branch  or  subdivision 
of  a  railroad  would  seem  to  bring  within  the  scope 
of  the  Act  any  employee  who  is  injured  while 
engaged  in  the  maintenance  or  operation  of  any 
of  the  permanent  instrumentalities  of  such  branch 
or  subdivision. 

§  16.  Act    Applies    to    Interstate    Electric 
Lines. 
There  can  be  little  doubt  that  street  railways 
which  transport  passengers  across  state  lines  are 


TO   INTERSTATE  EMPLOYEES  83 

included  within  the  terms  of  the  Act.  This  statute 
differs  from  the  Arbitration  Act  and  the  Safety 
Appliance  Act  in  this,  that  it  makes  no  express 
exclusion  from  its  terms  of  street  railways,  while 
in  those  Acts  street  railways  were  expressly  ex- 
cepted. The  omission  of  any  such  exception  in 
the  present  Act  seems  to  indicate  the  congressional 
intent  to  include  them.  The  language  of  the  Act 
seems  to  include  them.  In  view  of  the  compre- 
hensive and  inclusive  definitions  of  interstate 
commerce  made  by  the  courts,  it  will  be  seen  that 
the  service  and  activities  of  most  of  the  railroads 
in  the  United  States  bring  them  within  the  scope 
of  the  statute  here  under  consideration.1 

1  The  contention  that  street  railways  engaged  in  interstate 
traffic  are  within  the  scope  of  the  Employers'  Liability  Act  seems 
to  find  support  in  the  reasoning  of  the  Interstate  Commerce 
Commission  in  its  opinion  that  such  railways  were  included  in 
the  Act  to  Regulate  Commerce.  Willson  v.  Rock  Creek  R.  Co., 
7  I.  C.  C.  Rep.  83;  West  End  Improvement  Club  v.  Omaha  & 
C.  B.  Ry.  &  B.  Co.,  17  I.  C.  C.  Rep.  239,  with  authorities  cited. 


84  LIABILITY   OF   RAILROADS 


CHAPTER   V 

WHAT  EMPLOYEES  ARE  ENGAGED  IN  INTERSTATE 
COMMERCE  ? 

§  17.   Employees  Included  in  the  Act. 

To  bring  a  case  within  the  application  of  the 
Employers'  Liability  Act  of  1908,  not  only  must 
the  railroad  have  been  engaged  in  interstate 
traffic,  but  the  employee  for  whose  death  or  injury 
redress  is  sought  must,  at  the  time  of  the  acci- 
dent, have  been  himself  engaged  in  interstate 
commerce. 

A  telegrapher  may  send  messages  only  between 
points  within  a  single  State,  so  that  in  one  sense 
he  is  an  intrastate  servant,  yet  many  of  the 
despatches  he  handles  relate  to  interstate  or 
through  trains.  These  latter  trains  could  not 
move  without  the  telegraphic  orders  he  transmits. 
So  in  a  larger  sense  he  is  engaged  in  interstate 
commerce,  and  the  safety  of  interstate  operation 
may  depend  upon  the  proper  performance  of  his 
duty. 

The  work  of  a  track-walker  or  track-repairer  in 
like  manner  seems,  at  first  blush,  to  be  local  in 
character.  But  no  logic  can  exclude  him  from 
the  interstate  service,  for  his  duty  is  as  essential  to 


TO   INTERSTATE   EMPLOYEES  85 

the  safe  and  expeditious  movement  of  interstate 
trains  as  the  work  of  the  crew  of  such  trains. 

And  the  logic  which  includes  the  telegrapher 
and  the  track-repairer  in  the  common  employment 
doctrine  indubitably  results  in  their  inclusion  in 
the  interstate  service  in  which  the  railroad  is 
engaged.  That  an  employee  engaged  in  the  work 
of  repairing  a  track  which  is  used  indiscriminately 
for  both  interstate  and  intrastate  commerce  is  en- 
gaged in  interstate  commerce  has  been  determined 
in  a  case  arising  under  this  Act.  Zikos  v.  Oregon 
L.  &  N.  Co.,  179  Fed.  Rep.  893.  In  this  case  the 
Court  said:  "But  the  track  of  a  railroad  company 
engaged  both  in  interstate  and  intrastate  com- 
merce is,  while  essential  to  the  latter,  indispen- 
sable to  the  former.  It  is  equally  important  that 
it  be  kept  in  repair.  Where  the  traffic  is  not  in 
fact  interstate,  although  upon  a  railroad  engaged 
in  commerce  between  the  States,  such  as  trains 
devoted  entirely  to  local  business  and  wholly 
within  the  boundaries  of  a  State,  a  different  case 
is  presented.  There  it  is  possible  to  identify  what 
is  and  what  is  not  interstate;  but  where,  as  in 
this  case,  a  road  is  admittedly  engaged  in  both, 
it  becomes  impossible  to  say  that  particular  work 
done  results  directly  for  the  benefit  of  one  more 
than  the  other.  Manifestly  it  is  for  the  accom- 
modation of  both.  To  hold,  then,  that  a  work- 
man engaged  in  repairs  upon  the  track  of  such  a 


86  LIABILITY   OF   RAILROADS 

carrier  is  not  furthering  interstate  commerce  would 
be  to  deny  the  power  to  control  an  indispensable 
instrument  for  commercial  intercourse  between 
the  States  —  to  deny  the  power  of  Congress  over 
interstate  commerce,  —  but  that  the  power  ex- 
tends to  the  control  of  those  instrumentalities 
through  which  commerce  is  carried  on,  is  not  an 
open  question.  .  .  . 

"The  particular  question  is  an  apt  illustration 
of  the  intricacies  to  which  our  dual  system  of 
government  often  leads;  but  the  intricacy  is  but 
an  incident,  and  it  can  neither  defeat  nor  impair 
the  power  of  Congress  over  interstate  commerce. 

"Since  the  track,  in  the  nature  of  things,  must 
be  maintained  for  commerce  between  the  States, 
the  work  bestowed  upon  it  inures  to  the  benefit  of 
such  commerce.  It  is  therefore  subject  to  federal 
control,  even  though  it  may  contribute  to  car- 
riage wholly  within  the  State.  Being  inseparable, 
yet  interstate  commerce  inherently  abiding  in  the 
thing  to  be  regulated,  as  to  the  track,  the  state 
jurisdiction  must  give  way,  or  at  least  it  cannot 
defeat  the  superior  power  of  Congress  over  the 
subject  matter  whenever  a  carrier  is  using  the 
track  for  the  double  purpose." 

In  Colasurdo  v.  Central  R.  R.  of  N.  J.,  180  Fed. 
Rep.  832,  another  case  arising  under  the  Em- 
ployers' Liability  Act  of  1908,  a  plaintiff  was  held 
to  be  entitled  to  the  remedy  under  the  Act  where 


TO   INTERSTATE   EMPLOYEES  87 

he  was  injured  while  repairing  a  switch  in  the 
defendant's  yards  at  Jersey  City.  This  work  of 
repairing  a  switch  was  held  to  be  interstate 
business,  for  the  reason  that  the  switch  was 
necessarily  used  in  both  kinds  of  commerce. 

Terminal  charges  have  been  held  to  be  within 
the  regulative  power  of  Congress,  therefore  it  may 
fairly  be  concluded  that  yardmen  at  terminals 
where  local  and  interstate  traffic  are  commingled 
and  generally  handled  without  discrimination,  are 
engaged  in  interstate  commerce  and  are  within 
the  scope  of  the  Act. 

This  has  been  expressly  decided  in  Johnson  v. 
Great  Northern  Ry.  Co.,  178  Fed.  Rep.  643,  citing 
Chicago  Junction  Ry.  Co.  v.  King,  169  Fed.  Rep. 
372. 

By  the  terms  of  the  Act  "any"  employee 
"while"  engaged  in  interstate  commerce  is  in- 
cluded in  the  Act.  The  protection  of  the  Act  is 
thus  given  only  " while"  the  employee  is  engaged 
in  interstate  commerce. 

According  to  the  interpretation  already  given 
by  the  courts,  general  service  in  the  performance 
of  duty  relating  to  interstate  commerce  is  not 
sufficient.  The  particular  service  in  which  an 
employee  is  engaged  at  the  time  of  the  injury  must 
have  direct  relation  to  the  interstate  traffic  in 
which  the  railroad  company  is  engaged.  Thus, 
an  engineer  of  a  train  purely  local  (that  is,  a  train 


88  LIABILITY  OF  RAILROADS 

which  is  at  the  time  engaged  in  the  transporta- 
tion of  no  interstate  freight,  passengers  or  inter- 
state express  matter)  is  not  entitled  to  a  remedy 
under  the  provisions  of  this  Act.  And  this  is  true 
if  he  should  be  injured  by  a  collision  with  an 
interstate  train  on  an  interstate  highway,  because 
he  is  not,  at  the  time  of  the  injury,  himself  en- 
gaged in  interstate  commerce,  and  the  terms  of 
the  Act  limit  a  recovery  to  employees  who  suffer 
injury  " while"  engaged  in  interstate  commerce. 

But  what  rule  may  be  laid  down  for  the  deter- 
mination of  the  question,  "When  is  an  employee 
engaged  in  interstate  commerce?"  The  crew  of 
an  interstate  train  is  of  course  included.  A  switch- 
man engaged  in  duty,  as  such,  for  an  interstate 
train,  a  freight  handler  while  employed  in  handling 
interstate  or  foreign  freight  and  mechanics  or  car 
repair  men,  while  engaged  in  work  upon  inter- 
state cars  or  other  interstate  instrumentalities, 
and  while  passing  over  the  road  for  the  purpose 
of  making  repairs  upon  cars  or  engines  of  an 
interstate  train  are  also  included,  and  emergency 
or  wrecking  crews  while  at  work  upon  any  train 
on  an  interstate  highway  may  reasonably  be 
included. 
y^"~  In  other  words,  all  who  are  at  the  time  of  injury 
engaged  in  duty  which  has  direct  relation  to  the 
interstate  business  of  the  carrier  are  entitled  to 
the  protection  of  the  Act. 


TO   INTERSTATE   EMPLOYEES  89 

J  /The  Act  may  fairly  be  interpreted  to  include 
all  mechanics  who  are  engaged  at  the  time  of 
injury  upon  instrumentalities  which  are  generally 
and  indiscriminately  used  for  all  the  purposes  of 
an  interstate  railroad,  as,  for  instance,  linemen, 
track  repairers  and  laborers  engaged  in  the  general 
maintenance  of  the  interstate  highway  or  its 
signal  wires  or  apparatus,  and  those  whose  duties 
relate  to  the  construction,  maintenance,  and 
repair  of  those  instrumentalities  which  are  used 
in  the  business  conducted  by  the  interstate  rail- 
road without  discrimination  between  the  local  or 
interstate  character  of  its  traffic.  Snead  v.  Central 
of  Georgia  Ry.  Co.,  151  Fed.  Rep.  608.      // 

These  general  terms  include  the  vast  majority 
of  the  employees  of  an  interstate  railroad  who 
may  be  affected  by  peril  of  accident,  for,  as  rail- 
roads are  practically  conducted,  there  are  few 
employees  whose  duty  is  so  purely  local  that  they 
have  no  relation  to  interstate  traffic. 

This  interpretation  of  the  Act  is  sustained  in  the 
case  of  Johnson  v.  Great  Northern  Ry.  Co.,  178 
Fed.  Rep.  643,  in  the  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit.  District  Judge  William  H. 
Munger,  in  the  majority  opinion,  said:  "It  is 
argued  that  the  Employers'  Liability  Act  can 
have  no  application  to  the  case,  as  plaintiff  was 
not  an  employee  engaged  in  interstate  commerce. 
A  part  of  his  employment  was  to  see  the  coupling 


90  LIABILITY   OF   RAILROADS 

of  cars  and  the  air  hose  upon  the  cars  which  were 
placed  upon  the  transfer  tracks.  Some  of  those 
cars,  among  them  the  one  in  question,  were  en- 
gaged in  interstate  commerce. 

"  It  is  difficult  to  see  why  he  was  not  an  employee 
engaged  in  the  movement  of  interstate  commerce 
to  as  full  an  extent  as  a  switchman  engaged  in  the 
making  up  of  trains  in  the  railroad  yards,  as  in 
the  case  oi' Chicago  Junction  Ry.  Co.  v.  King,  169 
Fed.  Rep.  372." 

§  18.  Employment  must  Relate  to  Movement 
of  Traffic. 

Not  every  employee  who  is  engaged  in  work 
auxiliary  to  interstate  commerce  is  included  in 
the  Act.  The  work  of  the  employee,  to  bring  him 
within  the  terms  of  the  Act,  must  be  directly  con- 
nected with  and  in  aid  of  the  traffic  itself,  or  in  the 
maintenance  of  instrumentalities  which  are  gen- 
erally used  in  such  interstate  traffic. 

In  Milner  v.  Great  Northern  Ry.  Co.,  2  Minton- 
Senhouse  Workmen's  Compensation  Cases,  51,  52, 
Lord  Justice  A.  L.  Smith  said  that  in  his  opinion 
a  refreshment-room  did  not  come  within  the 
meaning  of  a  railway  in  the  Workmen's  Compen- 
sation Act,  coupled  with  the  Regulations  of  Rail- 
ways Act,  1873.  By  section  3  of  the  latter-men- 
tioned Act  " railway"  included  every  station  used 
for  the  purpose  of  public  traffic.     The  question 


TO   INTERSTATE   EMPLOYEES  91 

was  whether  this  refreshment-room  was  used  for 
the  purpose  of  public  traffic,  for  in  his  opinion  the 
section  did  not  mean  every  part  of  the  station, 
but  that  part  of  the  station  which  was  used  for 
purposes  of  public  traffic.  He  thought  that  a 
book-stall  could  not  be  said  to  be  so  used,  neither 
could  a  hotel. 

In  the  case  of  South  Eastern  Railway  Company 
v.  Railway  Commissioners,  6  Q.  B.  D.  586,  the 
question  was  whether  the  Railway  Commission 
had  jurisdiction  over  refreshment-rooms.  •  The 
Commissioners  had  assumed  such  jurisdiction,  but 
the  Court  of  Appeal  held  that  they  were  wrong 
in  doing  so,  on  the  ground  that  refreshment-rooms 
did  not  come  within  the  meaning  of  '  facilities  for 
the  receiving,  forwarding,  and  delivering  traffic 
upon  the  railway/  however  desirable  they  might 
be  for  the  comfort  or  convenience  of  passen- 
gers. ...  A  refreshment-room  at  a  railway 
station  was  not  used  for  the  purposes  of  pub- 
lic traffic,  but  was  only  for  the  convenience  of 
passengers." 

In  the  case  of  Philadelphia,  B.  &  W.  R.  Co.  v. 
Tucker,  35  App.  D.  C.  123,  the  Court  said: 
"When  Tucker  was  killed  he  was  upon  the 
premises  of  the  defendant  in  response  to  its 
call,  to  assume  the  duties  he  had  been  engaged 
by  the  defendant  to  assume,  and  for  their 
mutual  interest  and  advantage.     Can  it  be  that 


92  LIABILITY   OF   RAILROADS 

under  such  circumstances  the  relation  which  the 
decedent  sustained  to  the  defendant  was  that 
of  a  mere  stranger?  Is  it  possible  that  the  Act 
under  consideration  warrants  a  distinction  so 
fine  as  to  permit  a  master  to  escape  liability  for 
negligence  resulting  in  the  injury  of  one  hired  to 
perform  service  because  the  injury  occurs  before 
the  service  is  actually  undertaken,  notwithstand- 
ing that  at  the  time  of  the  injury  the  servant  is 
properly  and  necessarily  upon  the  premises  of  the 
master  for  the  sole  purpose  of  his  employment? 
We  think  not.  Such  a  rule,  in  our  view,  would  be 
as  technical  and  artificial  as  it  would  be  unjust. 
We  think  the  better  rule,  the  one  founded  in  reason 
and  supported  by  authority,  is  that  the  relation 
of  master  and  servant,  in  so  far  as  the  obligation 
of  the  master  to  protect  his  servant  is  concerned, 
commences  when  the  servant,  in  pursuance  of 
his  contract  with  the  master,  is  rightfully  and 
necessarily  upon  the  premises  of  the  master.  The 
servant  in  such  a  situation  is  not  a  mere  trespasser 
nor  a  mere  licensee.  He  is  there  because  of  his 
employment,  and  we  see  no  reason  why  the  master 
does  not  then  owe  him  as  much  protection  as  it 
does  the  moment  he  enters  upon  the  actual  per- 
formance of  his  task.   .    .   . 

"In  Packet  Company  v.  McCue,  17  Wall.  508, 
a  bystander  was  hired  on  a  wharf  to  assist  in  load- 
ing a  boat  which  was  soon  to  sail.    This  man  had 


TO   INTERSTATE   EMPLOYEES  93 

been  occasionally  employed  in  such  work.  His 
services  occupied  about  two  and  one-half  hours, 
when  he  was  directed  to  go  to  'the  office/  which 
was  on  the  boat,  and  get  his  pay.  This  he  did 
and  then  attempted  to  go  ashore.  While  on  the 
gangplank  the  plank  was  recklessly  pulled  from 
under  his  feet  and  he  was  thrown  against  the 
dock,  receiving  injuries  from  which  he  died. 
Owing  to  the  somewhat  peculiar  nature  of  the 
case  it  was  held  that  it  was  for  the  jury  to  say, 
although  the  facts  were  undisputed,  whether  the 
relationship  of  master  and  servant  existed  until 
the  man  got  completely  ashore.  The  concluding 
sentence  of  the  opinion  of  Mr.  Justice  Davis  was 
as  follows :  '  The  defense  at  best  was  a  narrow  one 
and,  in  our  view,  more  technical  than  just/ 

"In  Ewald  v.  The  Chicago  &  N.  W.  R.  Co., 
70  Wis.  420,  it  was  held  that  an  engine-wiper 
employed  in  the  defendant's  roundhouse,  while 
going  to  his  work  along  a  pathway  crossing  the 
defendant's  yard  and  tracks  was  an  employee  of 
the  defendant,  hence  could  not  recover  for  injury 
resulting  from  the  negligence  of  a  fellow-servant 
on  the  freight  train  causing  the  injury.  The  court 
in  its  opinion  said:  'The  peculiar  facts  of  this 
case  which  make  him  such  appear  to  involve  pre- 
cisely the  same  principle  as  that  class  of  cases 
where  the  plaintiff  was  being  carried  on  his  way 
from  and  to  his  place  of  labor  by  the  railroad  com- 


94  LIABILITY  OF   RAILROADS 

pany,  by  consent,  custom,  or  contract,  and  was 
injured  by  the  negligence  of  other  employees  of 
the  company.  This  carriage  to  the  plaintiff  was 
the  means,  facility,  and  advantage  to  which  he  was 
entitled  by  reason  of  his  being  an  employee  or 
servant,  which  entered  into  and  became  a  part  of 
his  contract  of  employment  or  were  incidental  and 
necessary  to  it.  .  .  . 

'  .  .  .  Again,  it  may  be  said  that  the  plaintiff 
was  still  an  employee,  because  he  was  attempt- 
ing to  use  the  pathway  between  the  cars  as  the 
only  customary  and  convenient  means  of  access 
to  and  exit  from  the  roundhouse  which  the  com- 
pany had  provided  and  was  under  obligation  to 
keep  open  and  safe  for  him  and  his  fellow-workmen 
when  he  was  injured.' 

"In  Boldt  v.  New  York  C.  R.  Co.,  18  N.  Y.  432, 
plaintiff  was  injured  while  walking  on  a  new  track 
from  his  house  to  his  work.  The  court  said :  '  But 
he  was  in  the  defendant's  employment  and  doing 
that  which  was  essential  to  enabling  him  to  dis- 
charge his  particular  duty,  viz.,  going  to  the  spot 
where  it  was  to  be  performed,  and  he  was,  more- 
over, going  on  the  track  where,  except  as  the  ser- 
vant of  the  company,  he  had  no  right  to  be.  He 
was  there  as  the  employee  of  the  company,  and 
because  he  was  such  an  employee.' 

"But  it  is  urged  that  Fletcher  v.  Baltimore  & 
Potomac  R.  Co.,  168  U.  S.  135,  18  Sup.  Ct.  Rep. 


TO  INTERSTATE  EMPLOYEES  95 

35,  sustains  the  view  of  the  defendant  on  this 
question.  We  do  not  so  read  that  case.  There 
the  plaintiff  at  the  time  of  the  accident  had  ended 
his  work  for  the  day,  and  had  left  the  workshop 
and  grounds  of  the  defendant,  and  was  moving 
along  a  public  highway  in  the  city  with  the  same 
rights  as  any  other  citizen  would  have,  when  he 
was  struck  by  the  rebounding  of  a  stick  of  timber 
thrown  from  a  train  of  the  defendant  by  one  of  its 
employees,  a  practice  permitted  by  the  company, 
and  injured.  It  was  held  that  '  the  liability  of  the 
defendant  to  the  plaintiff  for  the  act  in  question 
is  not  to  be  gauged  by  the  law  applicable  to  fellow- 
servants,  where  the  negligence  of  one  fellow- 
servant  by  which  another  is  injured  imposes  no 
liability  upon  the  common  employer.'  Manifestly 
that  case  and  this  are  materially  different.  There 
the  plaintiff  was  not  on  the  premises  of  the  de- 
fendant, but  upon  a  public  highway  where  his 
relations  to  the  defendant  were  precisely  those  of 
the  general  public  to  it.  Its  relation  to  him,  there- 
fore, in  such  a  situation  was  precisely  what  it  would 
have  been  to  any  other  pedestrian.  Here,  how- 
ever, the  plaintiff  was  upon  the  premises  of  the 
defendant,  upon  its  invitation,  in  the  line  of  his 
employment,  and  solely  because  of  such  employ- 
ment. We  hold,  therefore,  that  at  the  time  of 
his  death  Tucker  was  within  the  protection  of  said 
Act." 


96  LIABILITY   OF   RAILROADS 

§  19.  Causal  Relation  between  Employment 
and  Injury. 

The  title  of  the  Employers'  Liability  Act  is  "An 
Act  relating  to  the  liability  of  common  carriers 
by  railroads  to  their  employees  in  certain  cases." 
From  this  title,  as  well  as  from  the  context  of  the 
Act,  it  is  apparent  that  the  remedy  provided  is 
one  which  arises  only  when  the  employee  is  killed 
or  injured  from  a  cause  which  is  incidental  to  0} 
arising  out  of  railroad  employment. 

If  any  injury  arises  from  a  cause  in  no  manner 
connected  with,  or  arising  out  of  such  employ- 
ment, no  recovery  is  possible  under  the  Act. 

Section  1  expressly  limits  the  right  of  recovery 
under  its  terms  "to  any  person  suffering  injury 
while  he  is  employed  by  such  carrier  in  such 
commerce." 

In  Armitage  v.  Lancashire  &  Yorkshire  Ry.  Co., 
4  Minton-Senhouse  Workmen's  Compensation 
Cases,  5,  in  which  case  A  maliciously  threw  a  piece 
of  iron  at  B,  which  struck  the  eye  of  C  who  was  at 
work,  it  was  decided  that  a  workman  who  was 
injured  through  the  tortious  act  of  a  fellow-work- 
man, which  had  no  relation  whatever  to  their  employ- 
ment, had  no  claim  against  his  employer,  because 
the  injury  did  not  arise  out  of  the  employment. 

Collins,  M.  R.,  in  delivering  the  opinion  of  the 
court,  said:  "It  seems  tome  that  in  such  a  case 
the  accident  would  not  arise  '  out  of  or  in  the  course 


TO   INTERSTATE   EMPLOYEES  97 

of  the  employment.'  It  would  not  be  an  incident 
of  the  employment  at  all.  It  would  be  entirely 
outside  the  scope  of  the  employment  of  the  doer 
of  the  act  and  of  the  injured  workman.  .  .  . 
It  seems  to  me,  as  a  matter  of  law,  that  we  cannot 
say  that  the  injury  caused  by  a  missile  thrown 
by  another  workman  entirely  outside  the  scope 
of  his  employment  was  caused  by  an  accident 
which  arose  out  of  his  employment." 

There  must  be,  as  Lord  M'Laren  said  in  O'BrienS 
v.  Star  Line,  Limited,  I  Butterworth's  Workmen's    \ 
Compensation  Cases,   177,   at  page   181,   "some 
causal  relation  between  the  employment  and  the 
accident."  ^    ^S 

In  the  case  of  Jackson  v.  Chicago,  R.  I.  &  P.  / 
Ry.  Co.,  178  Fed.  Rep.  432,  435,  Smith  McPherson/ 
District  Judge,  said:   "The  test  of  the  employer's 
liability  is  not  the  fact  that  the  negligent  act  of/ 
the  servant  was  during  the  existence  of  his  em-\ 
ployment;   nor  is  the  test  that  his  act  was  done  \ 
during  the  time  he  was  doing  some  act  for  his     ) 
employer.    But  the  test  is:   Was  the  act  causing 
the  injury  done  in  the  prosecution  of  the  master's 
business?     Clancy  v.  Barker,  131  Fed.  Rep.  161; 
Bowen  v.  Illinois  C.  R.  Co.,  136  Fed.  Rep.  306; 
St.  Louis  S.  W.  R.  Co.  v.  Harvey,  144  Fed.  Rep. 
806;  Morier  v.  St.  Paul,  M.  &  M.  R.  Co.,  31  Minn. 
351,   17  N.  W.  Rep.  952;    Hudson  v.  Missouri 
K.  &  T.  R.  Co.,   16  Kan.  470." 


98  LIABILITY   OF  RAILROADS 

"But  where  the  servant,  instead  of  doing  that 
which  he  was  employed  to  do,  does  something 
which  he  was  not  employed  to  do  at  all,  the 
master  cannot  be  said  to  do  it  by  his  servant," 
Maule,  J.,  in  Mitchell  v.  Crassweller,  13  C.  B.  235, 
and  Parke,  B.,  in  Joel  v.  Morrison,  6  C.  &  P.  501, 
"but  if  he  was  going  on  a  frolic  of  his  own,  with- 
out being  at  all  on  his  master's  business,  the 
master  will  not  be  liable." 

;  The  statute  makes  the  carrier  liable  for  negli- 
gence of  any  of  its  officers,  agents,  or  employees. 
Logically,  therefore,  the  negligence  to  be  actionable 
\  must  be  in  the  capacity  of  officers,  agents,  or 
I  employees.  It  is  not  every  act  of  negligence  of  a 
person  who  happens  to  be  an  employee,  but  the 
negligence  of  an  employee,  as  such.  The  negli- 
gence must  have  some  natural  relation  to  the 
employment  or  business  of  the  carrier,  and  must 
be  negligence  relating  to  or  incidental  to  the 
employer's  business.  Of  course,  the  statute  does 
not  apply  to  an  injury  received  at  a  time,  and 
place,  and  from  a  cause  entirely  disconnected 
with  the  employment. 


TO   INTERSTATE    EMPLOYEES  99 


CHAPTER   VI 

CONSTRUCTION  OF  THE    ACT 

§  20.   Statute  is  not  Retroactive. 

And  this  was  the  interpretation  given  also  to 
the  Act  of  June  11,  1906.  Hall  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  149  Fed.  Rep.  564. 

It  was  decided  in  the  case  of  Winfree  v.  North- 
ern Pacific  Ry.  Co.,  164  Fed.  Rep.  698,  that  the 
expression  " action  hereafter  brought, "in  section 
3  of  the  present  Act  indicates  that  the  Act  "does 
not  apply  to  an  action  by  an  employee  for  an  injury 
received  before  the  statute  was  enacted." 

§  21.  No  Recovery  when  Injury  Caused 
Solely  by  Plaintiff's  own  Negligence. 
If  the  injury  is  caused  solely  or  primarily  by  the 
employee's  own  negligence,  he  cannot  recover.  If 
it  was  caused  in  whole  or  in  part  by  the  negligence 
of  the  railroad  or  any  of  its  employees  other  than 
himself,  he,  or  in  case  of  his  death  his  dependents, 
may  recover.  If  the  negligence  of  the  railroad  or 
any  of  its  employees  was  the  primary  cause  of, 
or  proximately  contributed  to,  the  injury,  a 
recovery  may  be  had  under  the  Act.  Kennedy  v. 
Erie  Railroad   Co.,   Charge   to   jury  of   District 


100  LIABILITY   OF   RAILROADS 

Judge  McCall,  U.  S.  Circuit  Court,  Northern 
District  of  Ohio,  November  13,  1909,  not  yet 
reported. 

§  22.   Venue  of  Action. 

The  Act  as  amended  in  1910  permits  a  plaintiff 
to  bring  his  suit  in  the  Circuit  Court1  of  the  district 
where  the  cause  of  action  arose,  or  in  the  district 
where  the  defendant  may  be  doing  business. 

§  23.  Jurisdiction  Concurrent  in  State  and 
Federal  Courts. 
The  amended  Act  of  1910  also  permits  a  con- 
current jurisdiction  over  actions  for  damages  under 
this  law  in  the  courts  of  the  several  States  and 
the  courts  of  the  United  States.  This  permits  the 
plaintiff  to  bring  his  action  in  a  State  court,  and 
when  the  action  is  so  begun,  the  defending  rail- 
road is  prohibited  from  removing  the  case  from 
the  state  to  the  federal  court. 

§  24.   Survival  of  Action. 

The  Act  as  amended  provides  for  the  survival 
of  any  right  of  action  for  the  benefit  of  the  sur- 
viving widow  and  children,  in  case  an  employee 
dies  after  receiving  personal  injuries. 

1  For  statement  relative  to  the  discontinuance  of  the  Cir- 
cuit Courts  of  the  United  States  and  the  assumption  of  their 
jurisdiction  by  the  United  States  District  Courts,  see  footnote 
on  page  38. 


to  interstate  employees  101 

§  25.  Construction  of  Section  1  of  the  Act 
of  1908. 

If  the  construction  which  has  been  given  to 
the  concluding  portion  of  section  1,  by  District 
Judge  Whitson,  Eastern  District  of  Washington, 
in  the  case  of  Campbell  v.  Spokane  &  Inland 
Empire  R.  Co.,  not  yet  reported,  is  correct,  the 
provision  giving  a  remedy  against  the  carrier  for 
death  or  injury  of  an  employee  which  arises  "by 
reason  of  any  defect  or  insufficiency  due  to  its 
negligence,  in  its  cars,  engines,  appliances,  ma- 
chinery, track,  roadbed,  works,  boats,  wharves,  or 
other  equipment"  amounts  only  to  a  legislative 
re-enactment  of  the  common  law. 

In  that  case  Judge  Whitson  said:  "The  theory 
that  the  provision  allowing  damages  for  defects 
or  insufficiency  in  cars,  engines,  and  the  like  has 
enlarged  upon  the  liability  theretofore  existing 
cannot  be  accepted.  No  enactment  was  needed 
to  enable  an  employee  to  hold  his  employer  to 
the  payment  of  damages  when  negligent  in  this 
regard." 

But  the  law  of  negligence  as  it  existed  generally 
throughout  the  country  before  the  enactment  of 
the  Federal  Employers'  Liability  Act  provided  no 
remedy  for  an  injured  railroad  employee,  no  mat- 
ter how  flagrant  the  negligence  of  his  employer  in 
permitting  its  cars,  appliances,  machinery,  etc., 
to  become  defective,  if  the  employee  had  knowl- 


102  LIABILITY   OF   RAILROADS 

edge  of  the  defective  condition  of  such  equipment 
and  continued  to  use  it  in  his  work.  He  was  then 
presumed  to  have  assumed  the  risk  of  injury  from 
such  appliances.  This  was  the  common-law 
rule. 

This  "assumption  of  risk"  was  contractual  and 
arose  out  of  the  contract  of  employment.  But 
this  statute  makes  void  any  contract  "the  pur- 
pose or  intent  of  which  shall  be  to  enable  any 
common  carrier  to  exempt  itself  from  any  liability 
created  by  this  Act." 

Therefore  no  contract  for  an  assumption  of 
risk  is  legally  enforceable,  either  expressly  or  by 
implication.  Certainly  no  express  contract  that 
the  employee  should  assume  the  risk  of  defective 
appliances  of  the  carrier  which  employed  him 
would  be  of  any  avail  to  the  defendant.  Can  it 
be  possible  that  an  implied  contract  may  be  pre- 
sumed which  may  be  given  legal  force  and  efficacy 
where  an  express  contract  would  fail  to  do  so? 

If  as  to  the  defective  appliances  mentioned  in 
the  statute  there  is  no  assumption  of  risk  arising 
from  the  employees'  use  of  such  appliances,  with 
full  knowledge  of  the  character  of  the  defects, 
then  "the  liability  theretofore  existing"  has  been 
"enlarged." 

This  seems  to  be  sustained  by  the  reasoning  of 
the  Court  of  Appeals  of  the  District  of  Columbia 
in  the  case  of  Philadelphia,  B.  &  W.  R.  Co.  v. 


TO   INTERSTATE  EMPLOYEES  103 

Tucker,1  35  App.  D.  C.  123,  in  its  discussion  of 
the  interpretation  of  the  Act  of  1908.  In  that 
case  the  Court  said: 

"In  this  assignment  it  is  sought  to  interpose  as 
a  defense  to  the  action  the  doctrine  of  assumption 
of  risk.  While  the  Act  does  not  in  terms  refer  to 
this  doctrine,  it  does  provide  in  section  3  'that 
no  contract  of  employment  .  .  .  shall  constitute 
any  bar  or  defense  to  an  action  brought  to  recover 
damages  for  personal  injuries  to  or  death  of  such 
employee.'  The  doctrine  of  assumption  of  risk 
results  from  the  contractual  relations  of  the 
parties.   .  .  . 

"In  1897  an  Employers'  Liability  Act  was  passed 
in  North  Carolina.  Section  2  of  that  Act  provides  : 
'That  any  contract  or  agreement  expressed  or 
implied  made  by  an  employee  of  said  company 
to  waive  the  benefit  of  the  aforesaid  section  shall 
be  null  and  void.'  Thereafter  suit  was  brought 
by  a  railroad  employee  who  was  injured  by  reason 
of  a  patent  defect  in  an  engine,  and  the  defense 
was  that,  inasmuch  as  he  had  continued  to  use  this 
engine  for  some  time  after  this  defect  was  known 

1  The  Supreme  Court  of  the  United  States  on  May  29th, 
1911,  affirmed  the  decision  of  the  Court  of  Appeals,  District  of 
Columbia,  in  the  case  of  Philadelphia,  Baltimore  &  Washington 
Railroad  Company,  Plaintiff  in  Error  v.  Lillian  Tucker,  Admx., 
in  a  per  curiam  opinion  citing  the  cases  of  El  Paso  &  N.  E. 
Ry.  v.  Gutierrez,  215  U.  S.  87;  and  Chicago,  B.  &  Q.  R.  Co.  v. 
McGuire,  219  U.  S.  549. 


104  LIABILITY   OF   RAILROADS 

to  him,  he  assumed  the  risk  of  accident  result- 
ing from  said  defect.  The  court,  however,  ruled 
otherwise.  The  court  said,  Coley  v.  North  Caro- 
lina R.  Co.,  128  N.  C.  534,  39  S.  E.  Rep.  43: 
'It  is  agreed  that  assumption  of  risk  is  con- 
tractual either  by  express  terms  or  by  impli- 
cation; and  disputes  usually  were  as  to  whether 
the  plaintiff  contracted  by  implication  or  as- 
sumption for  dangers  not  existing  at  the  date 
of  employment.  And  it  would  seem  by  this  Act 
that  the  Legislature  intended  to  put  an  end  to 
such  contentions,  by  saying  in  the  first  section 
that  he  shall  have  a  right  of  action  for  injuries 
caused  by  such  defective  machinery,  and  by  pro- 
viding in  the  second  section  that  he  cannot  waive 
this  right  by  contract  express  or  implied.'  The 
court  in  this  opinion  also  called  attention  to  the 
English  case  of  Smith  v.  Baker,  1891,  Appeal 
Cases,  L.  R.,  H.  of  L.  325,  60  L.  J.,  Q.  B.  n.  s. 
683,  in  which  was  considered  the  English  Em- 
ployers' Act  of  1880,  which  provides  that  an 
employee  shall  not  maintain  an  action  against 
his  master  for  injuries  received  from  defective 
machinery,  ways,  etc.,  unless  he  gives  notice  of 
such  defects  to  the  master  or  some  superior,  unless 
the  master  already  knows  of  the  defects.  A  ma- 
jority of  the  Lords  who  rested  their  opinions  upon 
1  he  Act  agreed  that  it  did  away  with  implied  as- 
sumption of  risk.   .   .   . 


TO   INTERSTATE   EMPLOYEES  105 

"In  interpreting  this  Act  we  should  bear  in  mind 
'the  purpose  of  Congress  to  regulate  the  liability 
of  employer  to  employee,  and  its  evident  intention 
to  change  certain  rules  of  the  common  law  which 
theretofore  prevailed  as  to  the  responsibility  for 
negligence  in  the  conduct  of  the  business  of  trans- 
portation.' El  Paso  &  Northeastern  R.  Co.  v. 
Gutierrez,  215  U.  S.  87,  30  Sup.  Ct.  Rep.  217. 
Having  that  purpose  in  mind,  courts  ought  not 
to  place  such  a  construction  upon  the  Act  un- 
less compelled  by  its  terms  so  to  do,  as  will  in 
a  large  measure  defeat  such  purpose.  There  are 
comparatively  few  employees  of  common  carriers 
who  would  sacrifice  their  positions  because  of 
known  defects.  We  think  this  Act  was  intended 
to  quicken  the  responsibility  of  carriers  and,  by 
doing  away  with  the  doctrine  of  assumption  of 
risk  in  cases  based  upon  their  negligence,  compel 
them  to  take  proper  precautions  for  the  safety 
of  their  servants.  In  other  words,  the  Act  was 
meant  to  discourage  negligence.  It  is  an  easy 
thing  to  say  that  no  one  is  compelled  to  remain 
in  the  service  of  the  carrier,  but  experience 
demonstrates  that  this  is  only  half  a  truth. 
It  is  the  policy  of  the  law  to  protect,  so 
far  as  possible,  those  pursuing,  and  oftentimes 
necessarily  pursuing,  so  hazardous  an  employ- 
ment. It  is  enough  that  they  must  assume 
the  intrinsic  risks  of  their  calling,  without  com- 


106  LIABILITY   OF   RAILROADS 

pelting  them  to  assume  the  negligence  of  their 
employers. 

"Our  attention  is  directed  to  the  difference  in 
the  phraseology  of  the  Employers'  Liability  Act 
of  April  22,  1908  (35  Stat,  at  L.  65,  chap.  149), 
XJ.  S.  Comp.  Stat.  Supp.  1909,  p.  1171,  as  bearing 
upon  the  question  under  consideration.  That  Act 
excuses  employees  from  the  rule  of  contributory 
negligence  in  any  case  where  a  failure  by  the 
carrier  to  comply  with  any  statute  enacted  for 
the  safety  of  employees  contributed  to  the  injury 
complained  of.  The  Act  then  provides  that  the 
doctrine  of  assumption  of  risk  shall  not  be  appli- 
cable to  such  a  situation.  We  see  no  reason  why 
that  Act  should  be  interpreted  as  a  legislative 
declaration  that  the  prior  Act  of  1906  did  not  do 
away  with  the  doctrine  of  assumption  of  risk,  in 
so  far  at  least  as  the  injury  forming  the  basis  of 
the  action  resulted  from  the  negligence  of  the 
carrier.  There  was  special  reason  in  the  later  Act 
for  inserting  a  provision  in  respect  of  the  doctrine. 
Moreover,  it  well  might  be  held  that  since  the 
first  section  of  the  later  Act  in  terms  charges  the 
master  with  responsibility  for  any  defect  or  in- 
sufficiency due  to  its  negligence  in  its  cars,  engines, 
appliances,  etc.,  that  such  a  statute  was  'enacted 
for  the  safety  of  employees/  and  hence  that  the 
failure  of  the  carrier  to  keep  its  cars,  engines, 
appliances,    etc.,    sufficiently    free    from    defects 


TO   INTERSTATE   EMPLOYEES  107 

would  prevent  such  carrier  not  only  from  inter- 
posing the  defense  of  assumption  of  risk,  but  also 
from  interposing  the  defense  of  contributory 
negligence.  In  other  words,  would  the  carrier, 
after  admitting  its  negligence  in  failing  to  install 
and  maintain  proper  and  sufficient  cars,  engines, 
appliances,  etc.,  and  the  injury  resulting  there- 
from, be  permitted  to  escape  responsibility  by 
resorting  to  the  defense  of  assumption  of  risks  ? 
Clearly  had  section  1  in  terms  provided  that  car- 
riers should  install  and  maintain  proper  and 
sufficient  cars,  etc.,  and  that  the  failure  to  do  so 
would  render  it  liable  for  accidents  resulting  from 
such  failure  and  deprive  it  of  the  defense  of  con- 
tributory negligence,  the  carrier  would  not  be  per- 
mitted to  defeat  the  law  by  resorting  to  the  doc- 
trine of  assumption  of  risk.  Kilpatrick  v.  Grand 
Trunk  Ry.  Co.,  74  Vt.  288,  52  Atl.  Rep.  531. 
We  are  not  called  upon,  however,  to  interpret  the 
Act  of  1908,  and  have  alluded  to  it  for  the  sole 
purpose  of  ascertaining,  if  possible,  whether  it 
sheds  any  light  upon  the  meaning  of  the  prior  Act. 
We  are  not  prepared  to  say  that  there  is  anything 
in  the  later  Act  which  compels  a  different  view 
than  we  have  taken  of  the  earlier  one.  Having 
in  mind,  therefore,  the  scope  and  purpose  of  the 
Act  of  1906,  we  rule  that  the  trial  court  was  right 
in  refusing  the  defendant's  instruction  upon  the 
subject  of  the  assumption  of  risk." 


108  LIABILITY   OF   RAILROADS 

There  is  some  importance  and  force  to  the  sug- 
gestion of  the  District  of  Columbia  court  that 
the  first  section  of  the  Act  "  in  terms  charges  the 
master  with  responsibility  for  any  defect  or  in- 
sufficiency "  in  the  appliances  named  therein, 
that  it  is  a  statute  "enacted  for  the  safety  of 
employees,"  and,  therefore,  that  a  failure  on  the 
part  of  the  carrier  to  keep  its  cars  and  other 
appliances  free  from  defects  would  relieve  the 
plaintiff  from  any  assumption  of  risk  and  from 
contributory  negligence. 

This  is  the  only  interpretation  which  gives  any 
force  and  effect  to  the  language  used  by  Congress 
in  the  latter  part  of  the  first  section  relating  to  de- 
fect and  insufficiency  in  "cars,  engines,  appliances, 
machinery,  tracks,  roadbed,  works,  boats,  wharves, 
or  other  equipment."  According  to  Judge  Whit- 
son's  view  no  such  enactment  was  needed.  There- 
fore this  provision  was  purposeless  and  added 
nothing  to  the  remedial  rights  of  the  employee. 

But  it  is  not  lightly  to  be  assumed  that  there 
was  no  purpose  of  Congress  in  the  enactment  of 
this  provision.  If  a  meaning  can  reasonably  be 
found  for  its  enactment,  that  interpretation 
should   be   followed. 

As  the  interpretation  of  the  provision  as  to 
defects  in  cars,  etc.,  followed  in  the  Tucker  Case 
seems  to  be  logical,  reasonable,  and  consonant 
with  the  general  purpose  and  intent  of  the  Act, 


TO  INTERSTATE  EMPLOYEES  109 

it  will  probably  be  sustained  rather  than  an  inter- 
pretation which  gives  no  force  or  effect  to  its  terms. 

The  common  law  places  a  premium  upon  de- 
fective appliances  in  one  application  of  the  well- 
known  doctrine  of  assumption  of  risk,  in  this, 
that  the  more  obviously  defective  instrumentali- 
ties are,  the  more  easily  may  the  employer  demon- 
strate the  knowledge  of  the  defective  condition 
on  the  part  of  an  injured  employee,  and  thus  bar 
the  latter's  right  to  recover  damages  caused  by 
the  employer's  admitted  negligence. 

It  may  well  be  presumed  that  the  provision 
making  the  defendant  liable  for  a  casualty  to  an 
employee  caused  by  the  defective  condition  of 
machinery,  appliances,  etc.,  of  a  carrier  was 
intended  to  change  this  rule  of  the  common  law. 

Unless  this  construction  is  given  the  provision 
in  section  1,  as  to  defective  machinery,  appliances, 
etc.,  no  possible  purpose  could  exist  for  Congress 
merely  to  enact  the  common-law  rule,  leaving 
applicable  to  its  provisions  the  assumption-of- 
risk  doctrine,  which  deprives  an  employee  of  a 
remedy  where  the  defects  were  notorious  and 
manifest.  This  would  not  be  consistent  with  the 
legislative  hostility  to  the  doctrine  of  assumption 
of  risk  shown  throughout  the  statute.  It  is  not 
consistent  with  the  legislative  intent  to  protect 
employees. 

Congress  did  not  qualify  the  rule  that  defective 


110  LIABILITY  OF  RAILROADS 

machinery,  appliances,  etc.,  were  to  be  made  the 
basis  of  a  remedy  for  casualties  resulting  therefrom. 
It  may  therefore  be  presumed  that  the  legislation 
was  intended  to  give  a  remedy  in  such  case  un- 
qualifiedly, and  without  regard  to  the  common- 
law  rule  which  exempted  the  master  from  liability 
where  the  defects  were  manifest  and  known  to  the 
employee.  Unless  such  Congressional  intent  ex- 
isted, there  was  no  reason  for  enacting  a  provision 
as  to  the  specific  defects  enumerated  in  the  first 
section. 

The  place  this  provision  occupies  in  the  Act 
indicates  that  it  was  not  of  minor  importance,  but 
to  qualify  this  provision  with  the  assumption-of- 
risk  doctrine  would  give  to  it  no  importance  and  no 
meaning. 


TO   INTERSTATE   EMPLOYEES  111 


CHAPTER   VII 

STATUTES  FOR  SAFETY   OF  EMPLOYEES   AND 
EFFECT  OF  THEIR  VIOLATION 

§  26.   Effect    of    the    Violation    of    "Any 
Statute." 

The  most  radical  and  important  departure  made    , 
by  this  statute  from  the  rules  of  law  heretofore   ^ 
enunciated  is  found  in  the  total  abolition  of  the 
doctrines  of  contributory  negligence  and  assump-  / 
tion  of  risk  in  all  cases  where  the  violation  of  any 
statute  enacted  for  the  safety  of  employees  con- 
tributed to  the  casualty  upon  which  the  suit  is 
based. 

This  seems  to  establish  an  absolute  right  of  a     / 
plaintiff  to  recover  damages  upon  proof  of  the 
following: 

(a)  That  plaintiff  was  employed  by  defendant; 

(6)  That  defendant  was  a  common  carrier  en- 
gaged in  interstate  commerce  by  railroad; 

(c)  That  plaintiff  met  with  injury  while  he  was 
engaged  in  interstate  commerce;  and, 

(d)  That  the  violation  of  a  statute  enacted  for 
the  safety  of  employees  contributed  to  the  injury 
upon  which  his  suit  is  based. 

It  is  clear  that  in  such  a  case  no  defense  is  open 


112  LIABILITY   OF   RAILROADS 

to  the  defendant  arising  out  of  the  doctrine  of  as- 
sumption of  risk  or  contributory  negligence.  In 
this  particular  the  employee  is  given  an  advan- 
tage even  over  a  passenger. 

The  railroad  may  always  defend  against  a  suit 
for  damages  for  personal  injuries  brought  by  a 
passenger,  that  the  negligence  of  the  passenger 
contributed  to  the  injury.  This  defense  is  not 
now  open  in  a  suit  by  an  employee  engaged  in 
interstate  commerce,  when  the  injury  complained 
of  is  one  to  which  the  railroad's  violation  of  a 
statute  enacted  for  the  safety  of  employees  in 
any  manner  contributed. 

§  27.    The  Safety  Appliance  Acts. 

The  most  important  of  these  statutes,  the 
violation  of  which  by  an  interstate  railroad  affords 
a  basis  for  an  action  for  personal  injuries  under 
the  Employers'  Liability  Law,  is  the  so-called 
Safety  Appliance  Act  of  1893,  as  amended  in  1896 
and  1903.  A  full  discussion  of  these  statutes 
will  be  found  on  page  276  et  seq.,  post. 

There  seems  to  be  no  escape  from  the  conclusion 
that  Congress  intended  to  give  an  absolute  remedy 
to  all  interstate  railroad  employees  who  were 
injured  by  reason  of  the  absence  or  defective  con- 
dition of  appliances  required  by  statutes  enacted 
to  provide  for  the  safety  of  employees. 

Sections  3  and  4  of  the  Employers'  Liability  Act 


TO   INTERSTATE  EMPLOYEES  113 

of  1908  definitely  and  expressly  indicate  the  in- 
tention of  Congress  to  give  to  any  employee  to 
which  the  Act  applies  an  absolute  right  to  recover, 
where  the  employer  has  violated  any  of  the  statutes 
enacted  to  preserve  the  safety  of  employees. 

The  language  of  the  Act  does  not  require  that 
the  violation  of  such  safety  statute  shall  be  the 
sole  cause  of  the  accident,  for  the  carrier  is  made 
absolutely  liable  where  such  violation  contributed 
to  the  casualty,  although  this  has  been  interpreted 
to  mean  that  such  violation  was  the  proximate 
cause  of  the  injury  complained  of. 

In  the  case  of  Johnson  v.  Great  Northern  Ry. 
Co.,  178  Fed.  Rep.  643,  647,  Judge  Munger  said: 
"Nor  do  we  think  any  question  of  contributory 
negligence  or  assumed  risk  upon  the  part  of  the 
plaintiff  material  in  the  determination  of  the 
case  before  us,  Schlemmer  v.  Buffalo,  R.  &  P.  Ry. 
Co.,  205  U.  S.  1,  27  Sup.  Ct.  Rep.  407.  By  section 
8  of  the  Safety  Appliance  Act  it  is  provided  '  That 
any  employee  of  any  such  common  carrier,  who 
may  be  injured  by  any  locomotive,  car,  or  train, 
in  use  contrary  to  the  provision  of  this  Act,  shall 
not  be  deemed  thereby  to  have  assumed  the  risk 
thereby  occasioned,  although  continuing  in  the 
employment  of  such  carrier  after  the  unlawful  use 
of  such  locomotive,  car,  or  train  had  been  brought 
to  his  knowledge.' 

"Again,  we  think  the  facts  bring  the  case  within 


114  LIABILITY  OF  RAILROADS 

the  provisions  of  Act  Cong.,  April  22,  1908,  c.  149 
35  Stat.  65  (U.  S.  Comp.  St.  Supp.  1909,  p.  1172) 
known  as  the  '  Employers'  Liability  Act,'  as  the  de- 
fendant in  moving  the  car  in  question  was  engaged 
in  interstate  commerce,  plaintiff  was  employed  by 
such  carrier  in  said  commerce,  and  the  proximate 
cause  of  the  injury  was  the  defective  condition  of 
the  coupling  pin.  By  that  Act  the  question  of 
contributory  negligence,  when  applicable,  is  one  of 
fact,  to  be  submitted  to  the  jury.  The  Act  also 
provides:  'That  no  employee,  who  may  be  injured 
or  killed,  shall  be  held  to  have  been  guilty  of  con- 
tributory negligence  in  any  case  where  the  violation 
by  such  common  carrier  of  any  statute  enacted  for 
the  safety  of  employees  contributed  to  the  injury 
or  death  of  such  employee.  .  .  . 

"From  a  consideration  of  the  whole  case,  we 
think  the  defendant  a  railroad  company  engaged 
in  interstate  commerce;  that  the  car  in  question 
had  upon  it  a  coupler  which  was  defective  and  did 
not  comply  with  the  Act  of  Congress;  that  at  the 
time  plaintiff  was  injured  the  movement  of  the  car 
was  a  movement  by  defendant  in  interstate  com- 
merce; that  plaintiff  was  injured  while  a  servant 
of  defendant  and  in  the  performance  of  his  duty, 
aiding  in  the  movement  of  interstate  commerce; 
that  the  movement  of  the  car  with  the  defective 
coupler  was  the  proximate  cause  of  plaintiff's 
injury;  that  plaintiff  did  not  assume  the  risk  of 


TO   INTERSTATE   EMPLOYEES  115 

injury  incident  to  the  employment.  Whether 
plaintiff  was  guilty  of  any  negligence  which  con- 
tributed to  the  injury  was,  if  applicable,  a  question 
for  the  jury." 

§  28.  The  Hours  of  Service  Law. 

Under  the  Hours  of  Service  Law,  34  Stat.  L. 
1415,  1416,  cases  will  undoubtedly  arise  where  a 
right  to  recover  is  based  upon  the  death  or  injury 
of  an  employee  resulting  from  a  violation  of  the 
terms  of  this  statute.  Where  an  employee  is  now 
on  duty  in  excess  of  the  period  prescribed  by  the 
Hours  of  Service  Law,  such  violation  of  statute 
would  clearly  entitle  him,  if  he  were  injured,  to 
recover  under  the  provision  of  the  Employers' 
Liability  Act,  without  any  defense  being  open  to 
the  railroad  on  the  ground  either  of  assumption 
of  risk  or  contributory  negligence.  In  the  case 
of  New  York  v.  Erie  R.  Co.,  198  N.  Y.  369,  91 
N.  E.  Rep.  849,  the  Court  said:  "One  familiar 
form  of  this  class  of  legislation  is  that  which  has 
for  its  object  the  promotion  of  the  health  and 
welfare  of  the  employee,  as  especially  in  the  case 
of  women  and  children.  Another  class  seeks  to 
protect  the  safety  of  the  public  by  limiting  the 
hours  of  labor  of  those  who  are  in  control  of  dan- 
gerous agencies,  lest  by  excessive  periods  of  duty 
they  become  fatigued  and  indifferent  and  cause 
accidents  leading  to  injuries  and  destruction  of 


116  LIABILITY  OF   RAILROADS 

life.  This  statute  comes  within  the  latter  class, 
and  this  court,  in  the  case  of  Pelin  v.  New  York 
C.  &  H.R.  R.  Co.,  102  App.  Div.  71,  115  App. 
Div.  883,  188  N.  Y.  565,  affirmed  a  judgment 
where  the  basis  of  the  recovery  was  as  here,  that 
the  defendant  had  permitted  or  required  an  em- 
ployee to  be  on  duty  for  a  length  of  time  in  excess 
of  that  prescribed  by  another  section  of  the  Act 
which  we  are  now  considering." 

Another  case  upon  this  subject  arising  in  North 
Carolina  is  the  case  of  Lloyd  v.  North  Carolina 
R.  Co.,  151  N.  C.  536,  66  S.  E.  Rep.  604,  upon 
which  a  right  of  action  was  based  upon  the  re- 
quirement of  service  for  a  longer  period  than 
that  permitted  by  the  Hours  of  Service  Law.  In 
this  case,  however,  the  court  held  that  the  plain- 
tiff's right  of  recovery  could  only  be  based  upon 
said  law  upon  this  subject  which  made  penal  the 
act  of  the  employee  in  remaining  on  duty  for  a 
service  in  excess  of  the  period  therein  prescribed. 
The  court  held  that  the  participation  by  the  plain- 
tiff in  the  unlawful  act  of  remaining  on  duty  dis- 
qualified him  from  a  recovery  on  the  ground  that  he 
was  a  participator  in  the  violation  of  law,  and  was 
therefore  not  entitled  to  call  upon  the  defendant 
to  indemnify  him  from  an  injury  which  the  court 
held  resulted  from  such  unlawful  participation. 

That  the  Hours  of  Service  Act  is  constitutional 
has  been  held  in    United  States  v.  Illinois  Central 


TO   INTERSTATE   EMPLOYEES  117 

Ry.  Co.,  180  Fed.  Rep.  630,  and  in  Wisconsin  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  136  Wis.  407,  117 
N.  W.  Rep.  686.  A  case  is  now  pending  before 
the  Supreme  Court  in  which  reargument  has 
been  ordered,  which  involves  the  question  of  the 
constitutionality  of  the  Hours  of  Service  Act. 
Baltimore  &  Ohio  R.  Co.  v.  Interstate  Com- 
merce Commission,  31  Sup.  Ct.  Rep.  621.  See 
also  the  recent  cases:  Black  v.  Charleston  &  W. 
C.  Ry.  Co.,  69  S.  E.  Rep.  230;  Kansas  City  So. 
Ry.  Co.  v.  Quigley,  181  Fed.  Rep.  190. 

§  29.     The  Ash  Pan  Law. 

Under  the  terms  of  the  Employers'  Liability 
Act  a  railroad  company  cannot  plead  the  defenses 
of  assumption  of  risk  or  contributory  negligence 
in  a  suit  for  personal  injuries  received  by  an 
employee  by  reason  of  a  violation  of  the  provisions 
of  the  so-called  Ash  Pan  Law  of  May  30,  1908, 
35  Stat.  L.  476,  c.  225.  This  Act  requires  in 
terms  that  every  locomotive  engine  engaged  in 
interstate  commerce  shall  be  equipped  with  an 
automatic  ash  pan,  self-dumping  in  its  operation, 
which  will  permit  the  cleaning  of  the  fire  box  and 
appurtenances  without  requiring  the  presence  of  a 
man  or  men  beneath  the  engine.  The  full  text  of 
the  statute  will  be  found  on  page  333  of  the 
Appendix,  but  as  yet  the  law  has  never  been 
adjudicated. 


118  LIABILITY  OF   RAILROADS 

§  30.   The  Locomotive  Boiler  Inspection  Law. 

This  law  provides,  inter  alia,  "That,  from  and 
after  the  first  day  of  July,  nineteen  hundred  and 
eleven,  it  shall  be  unlawful  for  any  common  carrier, 
its  officers  or  agents,  subject  to  this  Act  to  use  any 
locomotive  engine  propelled  by  steam  power  in 
moving  interstate  or  foreign  traffic  unless  the 
boiler  of  said  locomotive  and  appurtenances  thereof 
are  in  proper  condition  and  safe  to  operate  in  the 
service  to  which  the  same  is  put,  that  the  same 
may  be  employed  in  the  active  service  of  such 
carrier  in  moving  traffic  without  unnecessary  peril 
to  life  or  limb,  and  all  boilers  shall  be  inspected 
from  time  to  time  in  accordance  with  the  provi- 
sions of  this  Act,  and  be  able  to  withstand  such 
test  or  tests  as  may  be  prescribed  in  the  rules  and 
regulations  hereinafter  provided  for." 

This  statute  clearly  falls  within  the  provisions 
of  the  Employers'  Liability  Act  of  1908,  inasmuch 
as  in  its  title  the  purpose  is  manifested  of  pro- 
moting the  "safety  of  employees  and  travelers 
upon  railroads ";  and  while,  of  course,  it  has  not 
been  construed  by  the  courts,  it  is  only  reasonable 
to  assume  that  cases  will  arise  for  death  or  injury 
caused  by  its  violation. 

§  31.   State  Statutes. 

While  it  is  manifest  that  violations  of  federal 
statutes  enacted  for  the  safety  of  employees  will 


TO   INTERSTATE    EMPLOYEES  119 

have  the  effect  of  barring  the  defense  of  contribu- 
tory negligence  and  assumption  of  risk,  it  is  by- 
no  means  clear  that  the  scope  of  these  provisions 
of  the  law  is  limited  to  such  federal  statutes. 
The  words  "any  statute"  would  seem  naturally 
to  include  the  statute  of  a  State  enacted  for  the 
safety  of  employees  as  well  as  a  federal  statute. 
In  the  Johnson  Case,  196  U.  S.  1,  Chief  Justice 
Fuller  adopts  the  rule  laid  down  by  Mr.  Justice 
Story  in  United  States  v.  Winn,  3  Sumner  209: 
"In  short,  it  appears  to  me  that  the  proper  course 
in  all  these  cases  is  to  search  out  and  follow  the 
true  intent  of  the  legislature,  and  to  adopt  that 
sense  of  the  words  which  harmonizes  best  with  the 
context,  and  promotes  in  the  fullest  manner  the 
apparent  policy  and  objects  of  the  legislature." 

Tested  by  this  rule  it  would  seem  that  the  mani- 
fest purpose  of  Congress  to  provide  for  the  safety 
of  employees  and  to  compensate  for  casualties 
which  overtake  them  while  in  the  hazardous  work 
of  railroading,  would  best  be  promoted  by  an  in- 
terpretation tending  to  require  of  the  railroads  a 
strict  compliance  with  all  laws,  state  and  federal, 
enacted  for  the  safety  of  employees. 

The  Employers'  Liability  Act  of  1908  was  en- 
acted after  Mr.  Justice  Brewer  had  written,  in 
the  dissenting  opinion  in  the  Schlemmer  Case,  205 
U.  S.  1,  27  Sup.  Ct.  Rep.  407,  that  "the  rule  is 
well  settled  that  while  in  cases  of  this  nature  a 


120  LIABILITY  OF  RAILROADS 

violation  of  the  statutory  obligation  of  the  em- 
ployer is  negligence  per  se,  and  actionable  if  in- 
juries are  sustained  by  servants  in  consequence 
thereof,  there  is  no  setting  aside  of  the  ordinary 
rules  relating  to  contributory  negligence,  which 
is  available  as  a  defense,  notwithstanding  the 
statute,  unless  that  statute  is  so  worded  as  to 
leave  no  doubt  that  this  defense  is  also  to  be 
excluded." 

Evidently  Congress  had  this  expression  in  view 
when  it  expressly  provided  that  such  defenses 
should  not  be  available  where  a  statute  is  violated. 

It  was  the  rule  which  Mr.  Justice  Brewer  laid 
down  which  Congress  intended  to  change  and 
abrogate.  This  rule  manifestly  applied  generally 
to  the  violation  of  any  statute,  state  or  federal, 
which  was  in  existence  at  the  time  of  the  injury. 
The  violation  of  any  " statutory  obligation"  was 
to  be  the  basis  of  the  denial  of  defenses  otherwise 
available.  This  is  a  rule  to  compel  compliance 
with  a  safeguard  required  by  any  legal  enactment. 
It  is  a  rule  Compelling  care  in  safeguarding  of 
the  lives  of  railroad  employees.  It  is  a  law  which 
tends  to  enforce  all  laws  enacted  for  the  safety  of 
employees.  When  negligence  has  reached  the 
point  of  law-breaking,  that  is,  the  violation  of  any 
law,  Congress  evidently  intended  that  the  burden 
of  the  injuries  resulting  as  its  consequences  should 
not  be  visited  upon  those  who  were  powerless,  but 


TO  INTERSTATE  EMPLOYEES  121 

upon  those  "who  could  measurably  control  the 
causes"  of  such  injuries. 

That  Congress  intended  this  interpretation  may 
be  gathered  from  the  use  of  the  term  "  any  statute," 
and  from  the  use  of  the  term  "any  law"  in  the 
report  of  the  Committee  explaining  this  provision. 

In  the  determination  of  the  question  of  the  pro- 
visions in  sections  3  and  4,  extending  the  liability 
of  the  carrier  to  any  case  "where  the  violation  by 
such  common  carrier  of  any  statute  enacted  for 
the  safety  of  employees  contributed  to  the  injury 
or  death  of  said  employee,"  it  may  be  noted  that 
in  the  bill  originally  under  consideration  by  the 
Committee,  as  proposed  by  Senator  La  Follette, 
the  expression  used  was  "where  the  violation  of 
law  by  such  common  carrier,  etc."  This  was 
made  the  subject  of  criticism  before  the  Senate 
Committee  on  Education  and  Labor,  February  21, 
1908,  and  Charles  J.  Faulkner,  Esq.,  counsel  for 
the  railroads,  objected  to  this  provision,  and  com- 
mented upon  it  as  follows,  page  43:  "In  other 
words,  it  takes  from  the  carrier  all  defenses  by 
proof  that  a  law  has  been  violated.  The  term 
law  means  a  statutory  law,  a  common-law  prin- 
ciple, a  rule  or  decision  of  a  court  that  binds  the 
carrier  or  any  other  provision  of  law,  even  the 
ordinance  of  a  town.  ...  If  the  Chairman  will 
permit,  I  would  submit  to  the  lawyers  of  the  Com- 
mittee the  proposition  that  there  can  be  no  action- 


122  LIABILITY  OF  RAILROADS 

able  negligence  of  a  carrier  that  is  not  a  violation 
of  law.  How  can  any  case  be  presented  in  which 
the  grossest  negligence  could  be  pleaded  or  even 
set  up  as  a  matter  to  determine  the  measure  of 
damages,  and  how  can  there  be  any  reduction  of 
the  damages  because  of  contributory  negligence 
where  there  is  no  actionable  case  of  negligence 
that  is  not  a  violation  of  law.  In  other  words,  we 
are  using  language  here  which  will  confuse,  which 
will  lead  and  invite  litigation,  when  a  plain,  simple 
declaration  of  what  is  the  purpose  of  the  Com- 
mittee can  be  made  in  such  a  way  as  to  avoid 
any  misunderstanding." 

And  thereafter  at  the  hearing  Mr.  R.  H.  Fuller, 
representing  the  railroad  brotherhoods  in  advocacy 
of  this  legislation,  said,  page  109:  "Now  with  re- 
gard to  that  provision  of  the  bill  which  prevents  a 
carrier  from  pleading  the  doctrine  of  contributory 
negligence  in  the  event  an  employee  is  injured  as 
the  result  of  the  carrier's  violation  of  law,  we  do 
not  think  it  is  susceptible  of  that  strained  con- 
struction which  was  put  upon  it  by  ex-Senator 
Faulkner  and  the  honorable  Senator  from  Mary- 
land. It  was  only  intended  to  apply  in  cases 
where  a  carrier  had  violated  some  statutory  law 
passed  for  the  protection  of  employees,  and  we  are 
willing  that  the  provisions  shall  be  so  amended  as 
to  limit  it  to  those  cases  if,  in  the  judgment  of  the 
Committee,  such  an  amendment  is  necessary.  .  .  ." 


TO   INTERSTATE  EMPLOYEES  123 

On  page  112  of  this  Report  the  following  dia- 
logue is  noted: 

"Senator  Brandegee.  You  would  be  satisfied 
if  that  provision  of  the  bill  which  says  that  the 
company  cannot  take  advantage  of  that  defense 
in  case  they  violate  the  law  was  modified  to  read 
'  any  law  passed  for  the  protection  of  employees '  ? 

"  Mr.  Fuller.     Yes,  sir. 

"Senator  Brandegee.    Something  like  that? 

"Mr.  Fuller.  Yes,  sir,  Senator,  that  is  all  it 
was  intended  for,  and  I  do  not  think  it  would  be 
held  to  apply  to  such  cases  as  were  mentioned. 

"Senator  Brandegee.  I  think  it  could  be,  as 
it  is  without  limitation,  and  the  word  '  law '  would 
be  broad  enough  to  cover  an  ordinance. 

"Senator  Borah.    It  has  been  so  held." 

It  may  be  fairly  assumed  that  when  the  change 
was  made  from  the  bill  as  drafted  to  the 
language  in  which  it  was  finally  enacted,  and  the 
words  "  a  law  "  were  stricken  out  and  the  words 
"  any  statute  "  inserted,  that  this  change  was  pri- 
marily made  to  relieve  the  Act  of  the  criticism 
that,  as  originally  drafted,  it  included  any  viola- 
tion of  law,  common  law,  or  statute,  or  even  a 
municipal  ordinance,  and  from  this  examination 
of  the  reports  of  the  hearing  before  the  com- 
mittee, it  seems  plain  that  it  was  the  intention 
of  Congress  that  the  words  "any  statute"  should 
include  any  statute,  state  or  federal. 


124  LIABILITY   OF   RAILROADS 

If  it  had  been  intended  to  limit  this  provision 
to  federal  statutes  alone,  the  language  used,  and 
which  is  generally  used  with  such  intent,  would 
have  been  "any  Act  of  Congress,"  as  is  apparent 
from  the  use  of  this  expression  elsewhere  in  the 
Act. 

It  is  objected  that  this  interpretation  of  the  Act 
would  render  it  constitutionally  objectionable, 
as  extending  the  federal  rule  to  the  limits  of 
state  legislation,  or  as  making  state  legislation 
beyond  the  scope  of  federal  power  indirectly  a 
part  of  the  Federal  Act,  and  that  it  admits  a  lack 
of  uniformity  in  the  regulations  laid  down  in  the 
Act  by  reason  of  the  diversity  of  the  statutes  for 
safety  as  they  exist  in  the  different  States. 

These  contentions  seem  to  be  fully  met  and 
answered  by  the  opinion  of  Chief  Justice  Mar- 
shall in  Gibbons  v.  Ogden,  9  Wheat.  1,  207,  where 
he  says:  "Although  Congress  cannot  enable 
a  State  to  legislate,  Congress  may  adopt  the 
provisions  of  a  State  on  any  subject."  And  at 
page  205,  "The  Acts  of  Congress,  passed  in  1796 
and  1799  (2  U.  S.  L.,  p.  545;  3  IT.  S.  L.,  p.  126) 
empowering  and  directing  the  officers  of  the  general 
government  to  conform  to  and  assist  in  the  execu- 
tion of  the  quarantine  and  health  laws  of  a  State, 
proceed,  it  is  said,  upon  the  idea  that  these  laws 
are  constitutional.  .  .  .  Congress  .  .  .  has  di- 
rected   its    officers    to    aid    in    the   execution    of 


TO  INTERSTATE  EMPLOYEES  125 

these  laws;  and  has  in  some  measure  adapted  its 
own  legislation  to  this  object,  by  making  provisions 
in  aid  of  those  of  the  States.  But  in  making  these 
provisions,  the  opinion  is  unequivocally  mani- 
fested, that  Congress  may  control  the  state  laws, 
so  far  as  it  may  be  necessary  to  control  them,  for 
the  regulation  of  commerce."  Congress  may 
adapt  its  legislation  to  state  statutes  for  safety 
upon  identically  the  same  grounds  as  justified 
such  action  as  to  state  health  and  quarantine 
Jaws. 


126  LIABILITY   OF   RAILROADS 


CHAPTER   VIII 
DAMAGES   AND   SUIT   BY   POOR    PERSON 

§  32.   Damages  for  Personal  Injuries. 

For  personal  injuries  not  resulting  in  death,  the 
employee  who  has  a  right  to  recover  under  the 
Employers'  Liability  Act  is  entitled  to  recover 
for  pain  and  suffering,  for  loss  of  employment  for 
such  time  as  the  injury  affects  ability  to  work,  for 
compensation  for  disfigurement  or  disability,  and 
for  expenses  of  nursing,  medical  and  surgical 
attendance. 

§  33.  Damages  for  Death  Prior  to  Act  of  1910. 
For  a  death  as  the  result  of  an  injury  received 
prior  to  April  5,  1910,  the  measure  of  damages 
was  the  loss  in  money  that  such  death  of  the  em- 
ployee caused  to  the  beneficiaries,  and  as  to  such 
cases  there  was  no  survival  of  the  cause  of  action 
for  the  pain  and  suffering  or  the  expense  to  which 
the  deceased  employee  had  been  subjected  as  a 
result  of  the  accident.  Walsh  v.  New  York,  N.  H. 
&  H.  R.  Co.,  173  Fed.  Rep.  494;  Cain,  Admx.  v. 
Southern  Ry.  Co.,  U.  S.  Circuit  Court,  Knoxville, 
Tennessee,  1911. 


TO  INTERSTATE  EMPLOYEES  127 

§  34.  Amendatory  Act  of  1910. 

Section  2  of  the  Act  of  April  5,  1910,  amending 
the  Liability  Act  of  1908,  enacted  that  "Any  right 
of  action  given  by  this  Act  to  a  person  suffering 
injury  shall  survive  to  his  or  her  personal  repre- 
sentative for  the  benefit  of  the  surviving  widow, 
or  husband  and  children  of  such  employee,  and, 
if  none,  then  of  such  employee's  parents;  and  if 
none,  then  of  the  next  of  kin  dependent  upon  such 
employee,  but.  in  such  cases  there  shall  be  only 
one  recovery  for  the  same  injury."  In  cases  aris- 
ing under  this  amendment,  that  is,  in  cases  of 
death  resulting  from  injury  received  subsequent 
to  April  5,  1910,  the  beneficiaries  are  entitled  to 
recover  all  the  damages  which  the  deceased  em- 
ployee suffered  or  to  which  he  was  subjected  as  the 
result  of  the  injury,  and  in  addition  thereto  such 
pecuniary  recompense  as  may  compensate  the 
beneficiary  for  the  loss  of  the  support  and  sus- 
tenance resulting  from  such  death.  In  estimating 
this  amount  the  jury  has  the  right  to  take  into 
consideration  the  age  of  the  deceased,  his  health, 
strength,  and  capacity  to  earn  money. 

Under  the  rule  laid  down  by  Mr.  Justice  Harlan 
in  Baltimore  &  P.  R.  Co.  v.  Mackey,  157  U.  S. 
72,  the  widow  and  young  children  who  depend  for 
support  entirely  upon  the  labor  of  a  husband  and 
father  would  be  entitled  to  recover  greater  dam- 
ages than  would  be  the  case  if  there  were  no  widow 


128  LIABILITY  OF   RAILROADS 

and  children  and  if  the  next  of  kin  were  not  solely 
dependent  upon  the  deceased  for  support. 

§  35.  Annuity  Tables. 

As  was  laid  down  in  the  case  of  Walsh  v.  New 
York,  N.  H.  &  H.  R.  Co.,  173  Fed.  Rep.  494, 
"annuity  tables  may  be  considered  by  the  jury 
in  ascertaining  the  compensation  the  plaintiff  is 
entitled  to  receive  for  the  pecuniary  injuries  sus- 
tained by  the  widow  and  children  by  reason  of 
the  death  of  the  intestate;  but  the  jury  may  also 
consider  the  state  of  health  of  the  intestate,  his 
age,  habits,  occupation,  and  the  likelihood  of  his 
being  able  to  work  during  the  period  of  his  ex- 
pectancy of  life. ' ' 

And  in  the  case  of  Cain,  Admx.  v.  Southern  Ry., 
ante,  in  charging  jury,  District  Judge  Sanford 
said:  "Now  you  have  heard  the  evidence  as  to  the 
expectancy  of  life  of  a  man  of  the  age  of  this  man, 
based  upon  the  mortality  tables  of  the  insurance 
companies,  the  data  collected  by  the  insurance 
companies.  Those  are  admitted  in  evidence  merely 
to  aid  you,  and  they  are  not  to  control  you.  They 
are  simply  based  upon  averages,  and  there  is  no 
certainty  that  any  man  will  live  the  average  dura- 
tion of  life.  Those  things  are  at  the  best  probabili- 
ties, and  a  man's  expectancy  of  life  varies  with 
his  occupation.  .  .  .  And  the  first  question  for 
you  to  consider  in  that  aspect  of  the  case  would 


TO   INTERSTATE  EMPLOYEES  129 

be  in  what  sum  of  money  would  compensate  .  .  . 
for  the  loss  in  money  that  may  be  reasonably  said 
to  have  resulted  through  the  death  of  the  husband 
and  father,  and  the  test  would  be  what  sum  in 
money  paid  in  a  lump  sum  at  the  present  time 
would  compensate  for  the  loss  of  money  that  they 
had  a  reasonable  expectation,  under  all  these 
circumstances,  of  receiving  from  their  husband 
and  father,  if  the  husband  and  father  had  lived. 
That  obviously  would  depend  upon  a  great  many 
considerations:  upon  his  wages,  what  he  was 
receiving  and  probably  would  receive;  upon  the 
expectation  of  living  that  he  had,  how  long  he 
probably  would  have  lived  to  have  given  them 
money,  on  how  much  he  spent  on  himself  as  dis- 
tinguished from  what  he  spent  on  his  wife  and 
children,  because,  of  course,  the  part  of  his  wages 
that  he  would  have  spent  upon  himself  would  be 
entirely  eliminated  from  your  calculations;  and 
then,  too,  it  would  depend  upon  the  reasonable 
expectations  that  his  widow  and  children  had  of 
receiving  the  money  from  him  and  their  probable 
expectancy  in  life  would  have  to  be  considered, 
how  long  they  would  probably  live  and  how  long 
the  children  would  probably  have  received  money 
from  their  father,  which  might  depend  upon 
whether  the  children  were  boys  or  girls.  It  de- 
pends upon  a  variety  of  circumstances.  There  is 
no  hard  and  fast  mathematical  rule  that  can  be 


130  LIABILITY  OF  RAILROADS 

laid  down.  It  is  a  matter  that  addresses  itself  to 
the  sound  common  sense  of  the  jury  under  all 
these  circumstances." 

§  36.   Suit  by  Poor  Person. 

Taking  cognizance  of  the  fact  that  many  plain- 
tiffs are  unable,  by  reason  of  their  poverty,  to  pay 
the  onerous  expenses  incident  to  proceedings  in 
the  United  States  courts,  Congress,  by  an  Act 
approved  June  25,  1910,  61st  Congress,  Sess.  II, 
c.  435,  enacted: 

"That  any  citizen  of  the  United  States  entitled 
to  commence  or  defend  any  suit  or  action,  civil 
or  criminal,  in  any  court  of  the  United  States,  may, 
upon  the  order  of  the  court,  commence  and  prose- 
cute or  defend  to  conclusion  any  suit  or  action,  or 
a  writ  of  error,  or  an  appeal  to  the  Circuit  Court 
of  Appeals,  or  to  the  Supreme  Court  in  such  suit 
or  action,  including  all  appellate  proceedings, 
unless  the  trial  court  shall  certify  in  writing  that 
in  the.  opinion  of  the  court  such  appeal  or  writ 
of  error  is  not  taken  in  good  faith,  without  being 
required  to  prepay  fees  or  costs  or  for  the  printing 
of  the  record  in  the  appellate  court  or  give  security 
therefor,  before  or  after  bringing  suit  or  action, 
or  upon  suing  out  a  writ  of  error  or  appealing, 
upon  filing  in  said  court  a  statement  under  oath  in 
writing  that  because  of  his  poverty  he  is  unable 
to  pay  the  costs  of  said  suit  or  action  or  of  such 


TO  INTERSTATE  EMPLOYEES  131 

writ  of  error  or  appeal,  or  to  give  security  for  the 
same,  and  that  he  believes  that  he  is  entitled  to 
the  redress  he  seeks  by  such  suit  or  action  or  writ 
of  error  or  appeal,  and  setting  forth  briefly  the  na- 
ture of  his  alleged  cause  of  action  or  appeal.' ' 


132  LIABILITY   OF   RAILROADS 


PART  TWO 

The  Constitutionality  of  Employers 
Liability  Act  of  1908 

CHAPTER  IX 

CONGRESS  MAY  REGULATE  THE  RELATION  BE- 
TWEEN MASTER  AND  SERVANT  ENGAGED  IN 
INTERSTATE    COMMERCE 

§  37.  Constitutionality  of  the  Act:  In 
General. 

The  constitutionality  of  the  Employers'  Lia- 
bility Act  of  1908  has  been  expressly  upheld  in 
Walsh  v.  New  York,  N.  H.  &  H.  R.  Co.,  173  Fed. 
Rep.  494;  Fulgham  v.  Midland  Valley  R.  Co., 
167  Fed.  Rep.  660;  Watson  v.  St.  Louis,  I.  M.  & 
S.  Ry.  Co.,  169  Fed.  Rep.  942;  Zikos  v.  Oregon 
R.  &  N.  Co.,  179  Fed.  Rep.  893;  Colasurdo  v. 
Central  R.  R.  of  N.  J.,  180  Fed.  Rep.  832;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Conley,  187  Fed. 
Rep.  949;  Bradbury  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.  (Iowa),  128  N.  W.  Rep.  1;  Owens  v.  Chicago 
G.  W.  Ry.  Co.  (Minn.),  128  N.  W.  Rep.  1011. 

In  the  following  cases  the  constitutionality  of 
the  Act  was  upheld  by  implication:  Johnson  v. 
Great  Northern  Ry.  Co.,  178  Fed.  Rep.  643;  Roush 
v.  Great  Northern  Ry.  Co.,  U.  S.  Circuit  Court, 


TO   INTERSTATE   EMPLOYEES  133 

E.  Dist.  of  Washington,  October  5,  1909;  Win- 
free  v.  Northern  Pacific  Ry.  Co.,  164  Fed.  Rep. 
698;  St.  Louis,  I.  M.  &.  S.  Ry.  Co.  v.  Hesterly 
(Ark.),  135  S.  W.  Rep.  874. 

But  the  constitutionality  of  the  statute  has 
been  challenged  on  the  following  grounds: 

a.  That  Congress  is  without  power  to  regulate 
the  relation  of  Master  and  Servant; 

b.  That  the  Act  abridges  the  freedom  of 
Contract; 

c.  That  the  Act  provides  a  discriminatory 
classification;  and 

d.  That  Congress  is  without  power  to  provide 
a  remedy  for  injuries  caused  by  intrastate  servants. 

These  will  be  treated  in  their  order,  and  under 
sub-division  e  of  this  discussion  will  be  considered 
seriatim  the  principal  objections  to  the  constitu- 
tionality of  the  Employers'  Liability  Act  of  1908 
suggested  by  the  Supreme  Court  of  Errors  of 
Connecticut,  in  the  case  of  Hoxie  v.  New  York, 
N.  H.  &  H.  R.  Co.,  82  Conn.  352. 

§  38.  Review  of  Authorities  in  which  Power 
of  Regulation  is  Implied. 
That  the  Act  regulates  the  relation  between 
master  and  servant  is  not  of  itself  a  constitutional 
objection  to  its  validity.  Where  necessary  and 
proper  in  order  to  regulate  and  safeguard  inter- 
state commerce,  Congress  has  the  power  to  regu- 


134  LIABILITY  OF  RAILROADS 

late  the  relation  of  master  and  servant  engaged  in 
that  commerce. 

Congress  has  acted  upon  this  interpretation  in  a 
well-recognized  code  of  specific  regulations  of  the 
terms  of  the  contract  of  employment  in  the  mer- 
chant marine.  Such  regulations  can  only  be 
supported  by  the  power  to  regulate  commerce. 
Congressional  power  to  enact  such  legislation  is 
sustained  by  the  Supreme  Court  in  the  case  of 
Patterson  v.  Bark  Eudora,  190  U.  S.  169,  23  Sup. 
Ct.  Rep.  821. 

Mr.  Justice  Story,  in  Barque  Chusan,  2  Story, 
455,  464,  465,  said:  "The  power  to  regulate  com- 
merce includes  the  power  to  regulate  navigation 
with  foreign  nations  and  among  the  States;  and 
it  is  an  exclusive  power  in  Congress.  This  I  con- 
ceive has  been  firmly  established  by  the  Supreme 
Court  of  the  United  States.  (See  Gibbons  v. 
Ogden,  9  Wheat.  1,  193  to  198.)  And  the  doc- 
trine stands,  as  I  conceive,  upon  grounds  which 
cannot  be  shaken  without  endangering  the  inter- 
ests of  the  whole  Union,  if  not  the  very  exist- 
ence of  the  Constitution  as  a  frame  of  government 
for  the  professed  objects  and  purposes  which  it 
was  intended  to  accomplish.  Now,  there  cannot 
be  a  doubt  that  the  prescribing  of  rules  for  the 
shipping  of  seamen  and  the  navigation  of  vessels 
engaged  in  foreign  trade,  or  trade  between  the 
States,  is  a  regulation  of  commerce.     In  what  re- 


I 


TO  INTERSTATE   EMPLOYEES  135 

spect  does  the  exercise  of  the  power  to  regulate, 
control,  or  extinguish  the  liens  given  by  the  mari- 
time law  for  material-men  upon  foreign  vessels, 
differ  from  the  power  to  regulate  the  shipping  of 
seamen,  or  the  navigation  of  foreign  vessels? 
Each  is   a  regulation    of   foreign    commerce,    or 

commerce   among  the   States.   ...  ( 

I 

The  power  of  Congress  to  regulate  the  relation 
of  master  and  servant,  both  being  engaged  in 
interstate  commerce,  is  asserted  by  Mr.  Justice  | 
White  in  the  Employer's  Liability  Cases,  207  U.  S. 
463,  495,  where  he  said:  "...  We  fail  to  per- 
ceive any  just  reason  for  holding  that  Congress  is 
without  power  to  regulate  the  relation  of  master 
and  servant,' to  the  extent  that  regulations  adopted 
by  Congress  on  that  subject  are  solely  confined  to 
interstate  commerce,  and  therefore  are  within  the 
grant  to  regulate  that  commerce,  or  within  the 
authority  given  to  use  all  means  appropriate  to 
the  exercise  of  the  powers  conferred." 

Mr.  Justice  Moody,  in  his  dissenting  opinion 
in  the  same  cases,  stated  that  he  agreed  "entirely 
with  all  that  was  said  in  the  opinion  of  Mr.  Justice 
White  in  support  of  the  power  of  Congress  to 
enact  a  law  of  this  general  character."  He  further 
said,  at  page  526:  "It  would  seem,  therefore,  that 
when  persons  are  employed  in  interstate  or  foreign 
commerce,  as  the  employment  is  an  essential  part 
of  that  commerce,  its  terms  and  conditions,  and  the 


136  LIABILITY  OF   RAILROADS 

rights  and  duties  which  grow  out  of  it,  are  under 
the  control  of  Congress  subject  only  to  the  limits 
on  the  exercise  of  that  control  prescribed  in  the 
Constitution.  ..." 

Attention  is  called  upon  this  point  to  the  deci- 
sion in  the  case  of  Adair  v.  United  States,  208 
U.  S.  161.  In  the  majority  opinion  Mr.  Justice 
Harlan,  at  page  178,  in  reference  to  the  previous 
decision  of  that  court  in  the  Employers'  Liability 
Cases,  207  U.  S.  463,  said:  ".  .  .  In  that  case  the 
Court  sustained  the  authority  of  Congress,  under 
its  power  to  regulate  interstate  commerce,  to 
prescribe  the  rule  of  liability,  as  between  inter- 
state carriers  and  its  employees  in  such  inter- 
state commerce,  in  cases  of  personal  injuries 
received  by  employees  while  actually  engaged 
in   such  commerce.  ..." 

And  in  his  dissenting  opinion  in  the  Adair  Case, 
above  quoted,  Mr.  Justice  McKenna  said,  at 
pages  182,  183:  "In  the  inquiry  there  is  neces- 
sarily involved  a  definition  of  interstate  com- 
merce and  of  what  is  a  regulation  of  it.  As 
to  the  first,  I  may  concur  with  the  opinion; 
as  to  the  second,  an  immediate  and  guiding  light 
is  afforded  by  the  Employers'  Liability  Cases,  207 
U.  S.  463.  In  those  cases  there  was  a  searching 
scrutiny  of  the  powers  of  Congress,  and  it  was 
held  to  be  competent  to  establish  a  new  rule  of 
liability  of  the  carrier  to  his  employees  —  in  a 


TO   INTERSTATE   EMPLOYEES  137 

word,  competent  to  regulate  the  relation  of 
master  and  servant,  a  relation  apparently  remote 
from  commerce,  and  one  which  was  earnestly 
urged  by  the  railroad  to  be  remote  from  commerce. 
To  the  contention  the  Court  said:  'But  we  may 
not  test  the  power  of  Congress  to  regulate  com- 
merce solely  by  abstractly  considering  the  broad 
subject  to  which  a  regulation  relates,  irrespective 
of  whether  the  regulation  in  question  is  one  of 
interstate  commerce.  On  the  contrary,  the  test 
of  power  is  not  merely  the  matter  regulated,  but 
whether  the  regulation  is  directly  one  of  inter- 
state commerce  or  is  embraced  within  the  grant 
conferred  on  Congress  to  use  all  lawful  means 
necessary  and  appropriate  to  the  execution  of 
that  power  to  regulate  commerce.'  In  other 
words,  that  the  power  is  not  confined  to  a  regula- 
tion of  the  mere  movement  of  goods  or  persons." 
And  in  the  recent  case  of  Atlantic  Coast  Line 
R.  Co.  v.  Riverside  Mills,  31  Sup.  Ct.  Rep.  164- 
168,  Mr.  Justice  Lurton  delivering  the  unani- 
mous opinion  of  the  court,  said:  "In  the  Em- 
ployers' Liability  Cases,  207  U.  S.  463,  power  to 
pass  an  Act  which  regulated  the  relation  of  master 
and  servant  so  as  to  impose  on  the  carrier,  while 
engaged  in  interstate  commerce,  liability  for  the 
negligence  of  a  fellow  servant,  for  which  at  common 
law  there  was  no  liability,  and  depriving  such 
carrier  of  the  common-law  defense  of  contributory 


138  LIABILITY  OF  RAILROADS 

negligence  save  by  way  of  reduction  of  damages, 
was  upheld." 

The  existence  of  this  power  of  Congress  over 
the  subject  of  the  relation  of  master  and  servant 
has  again  and  again  been  asserted  by  the  Supreme 
Court  in  cases  where  the  validity  of  State  legis- 
lation upon  the  same  subject  has  been  sustained 
"in  the  absence  of  legislation  of  Congress  upon 
the  subject."  Missouri  Pacific  Ry.  Co.  v.  Mackey, 
127  U.  S.  205,  8  Sup.  Ct.  Rep.  1161;  Minneapolis 
&  St.  Louis  Ry.  Co.  v.  Herrick,  127  U.  S.  210,  8 
Sup.  Ct.  Rep.  1176;  Chicago,  K.  &  W.  R.  Co.  v. 
Pontius,  157  U.  S.  209, 15  Sup.  Ct.  Rep.  585;  Tullis 
v.  Lake  Erie  &  W.  R.  Co.,  175  U.  S.  348,  20  Sup. 
Ct.  Rep.  136. 

In  the  case  of  Baltimore  &  0.  R.  Co.  v.  Inter- 
state  Commerce  Commission,  31  Sup.  Ct.  Rep.  621, 
Mr.  Justice  Hughes  said:  ''For  there  cannot  be 
denied  to  Congress  the  effective  exercise  of  its 
constitutional  authority.  By  virtue  of  its  power 
to  regulate  interstate  and  foreign  commerce, 
Congress  may  enact  laws  for  the  safeguarding  of 
the  persons  and  property  that  are  transported  in 
that  commerce  and  of  those  who  are  employed 
in  transporting  them.  Johnson  v.  Southern 
Pacific  Company,  196  U.  S.  1,  25  Sup.  Ct.  Rep. 
158;  Adair  v.  United  States,  208  U.  S.  177,  178, 
28  Sup.  Ct.  Rep.  277;  St.  Louis,  I.  M.  &  S.  R. 
Co.  v.  Taylor,  210  U.  S.  281,  28  Sup.  Ct.  Rep.  616; 


TO   INTERSTATE   EMPLOYEES  139 

Chicago,  Burlington  &  Quincy  Railway  Co.  v. 
United  States,  31  Sup.  Ct.  Rep.  612.  The  funda- 
mental question  here  is  whether  a  restriction  upon 
the  hours  of  labor  of  employees  who  are  connected 
with  the  movement  of  trains  in  interstate  trans- 
portation is  comprehended  within  this  sphere  of 
authorized  legislation.  This  question  admits  of  but 
one  answer.  The  length  of  hours  of  service  has 
direct  relation  to  the  efficiency  of  the  human 
agencies  upon  which  protection  to  life  and  property 
necessarily  depends.  This  has  been  repeatedly  em- 
phasized in  official  reports  of  the  Interstate  Com- 
merce Commission,  and  is  a  matter  so  plain  as 
to  require  no  elaboration.  In  its  power  suitably 
to  provide  for  the  safety  of  employees  and  travel- 
ers, Congress  was  not  limited  to  the  enactment 
of  laws  relating  to  mechanical  appliances,  but  it 
was  also  competent  to  consider,  and  to  endeavor 
to  reduce,  the  dangers  incident  to  the  strain  of 
excessive  tours  of  duty  on  the  part  of  engineers, 
conductors,  train  dispatchers,  telegraphers,  and 
other  persons  embraced  within  the  class  defined 
by  the  act.  And  in  imposing  restrictions  having 
reasonable  relation  to  this  end  there  is  no  inter- 
ference with  liberty  of  contract  as  guaranteed  by 
the  Constitution.  Chicago,  Burlington  &  Quincy 
Railroad  Company  v.  McGuire,  219  U.  S.  549,  31 
Sup.  Ct.  Rep.  259. 

"If  then  it  be  assumed,  as  it  must  be,  that  in  the 


140  LIABILITY   OF   RAILROADS 

furtherance  of  its  purpose  Congress  can  limit  the 
hours  of  labor  of  employees  engaged  in  interstate 
transportation,  it  follows  that  this  power  cannot 
be  defeated  either  by  prolonging  the  period  of 
service  through  other  requirements  of  the  carriers 
or  by  the  commingling  of  duties  relating  to  inter- 
state and  intrastate  operations." 

§  39.  It  is  a  Regulation  of  Terms  and  Con- 
ditions UNDER  WHICH  INTERSTATE  COM- 
MERCE is  Moved. 

The  regulation  of  master  and  servant  as  laid 
down  in  the  Employers'  Liability  Act  may  be  sup- 
ported as  a  regulation  of  commerce: 

Because  it  is  a  regulation  of  the  terms  and 
conditions  under  which  employees  move  com- 
merce. It  is  objected  that  the  contract  of  em- 
ployment of  interstate  employees  of  interstate 
carriers  is  not  commerce,  but  is  only  incidental  and 
auxiliary  thereto.  This  logic  would  exclude  the 
regulation  of  freight  rates.  The  contract  fixing 
compensation  for  carriage  of  freight  is  as  incidental 
and  as  auxiliary  to  the  commerce  itself  as  fixing 
the  terms  of  the  contract  of  service  in  interstate 
commerce.  If  the  contract  with  a  railroad  by  the 
shipper  for  the  service  of  the  carrier  in  interstate 
transportation  is  a  proper  subject  of  federal  reg- 
ulation, and  all  admit  that  it  is,  why  is  not  the 
contract  with  the  railroad  by  the  employee  for 


TO   INTERSTATE  EMPLOYEES  141 

service  in  interstate  transportation  equally  within 
the  scope  of  the  federal  power? 

The  railroad  moves  interstate  commerce,  and  its 
contract  to  move  the  commerce  is  within  federal 
power  when  it  contracts  so  to  do  with  the  passen- 
ger or  the  shipper.  The  employee  moves  inter- 
state commerce,  and  his  contract  to  move  the 
commerce  is  within  federal  power  when  he  con- 
tracts so  to  do  with  the  railroad. 

A  contract  to  move  commerce  is  commerce, 
whether  made  by  a  railroad  with  a  shipper  or  by 
an  employee  with  a  railroad.  If  a  contract  to 
move  commerce  is  not  commerce,  then  the  regu- 
lation of  freight  rates  is  beyond  the  scope  of 
federal  power. 

The  occupation  of  the  employees  of  an  inter- 
state carrier  is  commerce.  A  regulation  of  that 
occupation  is  a  regulation  of  commerce.  State 
laws  regulating  commercial  travelers  have  been 
declared  void  as  regulating  interstate  commerce. 
Robbins  v.  Shelby  County  Taxing  District,  120 
U.  S.  489,  7  Sup.  Ct.  Rep.  592;  Asher  v.  Texas, 
128  U.  S.  129,  9  Sup.  Ct.  Rep.  1. 

The  solicitation  of  orders  from  which  com- 
merce arises,  or  the  making  of  contracts  out  of 
which  commerce  arises,  is  itself  commerce.  The 
business  of  interstate  carriers  is  commerce  and 
may  be  regulated.  The  occupation  of  employees 
of  such  carriers  is  commerce  and  may  be  regulated. 


142  LIABILITY   OF  RAILROADS 

The  contract  in  each  case  is  a  contract  to  move 
commerce,  and  all  contracts  in  aid  of  the  move- 
ment of  commerce  are  within  the  congressional 
power  of  regulation.  The  train  crew  actually 
moves  commerce.  The  telegraph  operator,  the 
bridge  repairer,  the  switchman,  and  the  yardman 
all  assist  in  the  movement  of  commerce,  and  that 
directly. 

It  seems  to  be  clear  from  the  opinion  of  Mr. 
Justice  Brewer  in  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Stahley,  62  Fed.  Rep.  363,  that  roundhouse  em- 
ployees putting  a  recently  arrived  engine  in 
condition  for  immediate  use  and  the  work  of  track 
repairers  "was  work  directly  related  to  the  move- 
ment of  trains."  Work  directly  related  to  the 
movement  of  trains  when  these  trains  are  inter- 
state must  necessarily  be  work  directly  related  to 
the  movement  of  interstate  commerce  and  within 
the  scope  of  federal  power. 

§  40.  It  Furthers  a  Free  Flow  of  Commerce 
by  Promoting  Industrial  Peace. 

The  regulation  of  master  and  servant  as  laid 
down  in  the  Employers'  Liability  Act  may  be 
supported  as  a  regulation  of  commerce: 

Because  such  regulation  has  such  large  re- 
lation to  the  promotion  of  industrial  peace,  and 
removes  a  potent  cause  of  strife  and  strike  which 
impedes  a  free  flow  of  commerce  between  the 


TO   INTERSTATE   EMPLOYEES  143 

States.  Such  regulation  is  a  correlative  to  the 
power  asserted  in  the  Debs  Case,  158  U.  S.  564,  to 
exist  in  the  national  government  to  put  down 
disorderly  railroad  strikes  by  force  of  arms.  May 
not  Congress,  by  well-considered  legislation,  re- 
move the  causes  of  industrial  disturbance  and 
prevent  impediments  to  the  movement  of  inter- 
state commerce  without  resorting  to  the  national 
forces  after  disorder  has  become  manifest?  The 
federal  power  of  coercive  action  upon  the  subject 
of  disorders  growing  out  of  industrial  disputes  be- 
tween carriers  and  employees  engaged  in  interstate 
commerce  being  admitted,  In  re  Debs,  158  U.  S. 
564,  15  Sup.  Ct.  Rep.  900,  it  naturally  follows  that 
legislation  in  redress  of  grievances  and  in  preven- 
tion of  strife  and  disorder  tending  prejudicially  to 
affect  the  movement  of  interstate  commerce  may 
be  enacted  by  Congress  according  to  its  view  of 
the  public  policy  involved. 

The  establishment  of  a  legislative  policy  of 
justice  to  the  men  engaged  in  interstate  railroad- 
ing may  be  the  highest  statesmanship  in  the  regu- 
lation of  interstate  commerce.  It  is  wiser  to 
permit  freedom  to  the  legislative  power  to  establish 
just  relations  by  law,  rather  than  call  upon  courts 
and  troops  after  conditions  have  become  acute. 

As  the  Supreme  Court  of  West  Virginia  in 
sustaining  the  constitutionality  of  the  Scrip  Act, 
prohibiting  laborers'   wages  being  paid  in  other 


144  LIABILITY   OF   RAILROADS 

than  lawful  money,  Peel  Splint  Coal  Co.  v.  State, 
15  S.  E.  Rep.  1000,  1006,  said:  "Collisions  be- 
tween capitalists  and  the  workmen  endangering 
the  safety  of  the  State  stay  the  wheels  of 
commerce,  discourage  manufacturing  enterprise, 
destroy  public  confidence,  and  at  times  throw  an 
idle  population  upon  the  bosom  of  the  community. 
Surely  the  hands  of  the  legislature  cannot  be  so 
restricted  as  to  prohibit  the  passage  of  laws  directly 
intended  to  prevent  and  forestall  such  collisions." 

§  41.  Employees  are  Instrumentalities  of 
Interstate  Commerce. 

The  regulation  of  master  and  servant  as  laid 
down  in  the  Employers'  Liability  Act  may  be 
supported  as  a  regulation  of  commerce: 

Because  employees  are  instrumentalities  of 
interstate  commerce  and  come  within  the  well- 
known  rule  that  Congress  has  the  power  to  reg- 
ulate such  instrumentalities.  As  Mr.  Justice 
Johnson  said  in  his  concurring  opinion  in  Gibbons 
v.  Ogdeh,  9  Wheat.  1,230:  ".  .  .  The  subject,  the 
vehicle,  the  agent,  and  their  various  operations  be- 
come the  objects  of  commercial  regulation.  Ship- 
building, the  carrying  trade,  and  propagation  of 
seamen  are  such  vital  agents  of  commercial  pros- 
perity that  the  nation  which  could  not  legislate 
over  these  subjects  would  not  possess  power  to 
regulate  commerce.  ..." 


TO  INTERSTATE  EMPLOYEES  145 

In  Northern  Securities  Co.  v.  United  States,  193 
U.  S.  197,  24  Sup.  Ct.  Rep.  436,  Mr.  Justice 
Harlan,  delivering  the  opinion  of  the  court,  said: 
"Whilst  every  instrumentality  of  domestic  com- 
merce is  subject  to  state  control,  every  instru- 
mentality of  interstate  commerce  may  be  reached 
and  controlled  by  national  authority,  so  far  as 
to  compel  it  to  respect  the  rules  for  such  com- 
merce lawfully  established  by  Congress.  No 
corporate  person  can  excuse  a  departure  or  vio- 
lation of  that  rule  under  the  plea  that  that 
which  it  has  done  or  omitted  to  do  is  permitted 
or  not  forbidden  by  the  State  under  whose  au- 
thority it  came  into  existence.  ...  So  long  as 
Congress  keeps  within  the  limits  of  its  authority 
as  defined  by  the  Constitution,  infringing  no 
rights  recognized  secure  by  that  instrument,  its 
regulation  of  interstate  and  international  com- 
merce, whether  founded  in  wisdom  or  not,  must 
be  submitted  to  by  all." 

In  the  case  of  Gloucester  Ferry  Co.  v.  Pennsyl- 
vania, 114  U.  S.  203,  5  Sup.  Ct.  Rep.  826,  Mr. 
Justice  Field  said:  "The  power  [to  regulate  com- 
merce] also  embraces  within  its  control  all  the 
instrumentalities  by  which  that  commerce  may 
be  carried  on  and  the  means  by  which  it  may 
be  aided  and  encouraged.  The  subjects,  therefore, 
upon  which  the  power  may  be  exerted  are  of  in- 
finite variety.     While  with  reference  to  some  of 


140  LIABILITY  OF  RAILROADS 

them  which  are  local  and  limited  in  their  nature 
or  sphere  of  operation,  the  States  may  prescribe 
regulations  until  Congress  intervenes  and  assumes 
control  of  them;  yet  when  they  are  national  in 
their  character  and  require  uniformity  of  regula- 
tion affecting  alike  all  the  States  the  power  of 
Congress  is  exclusive." 

In  United  States  v.  Freight  Association,  166 
U.  S.  290,  312,  17  Sup.  Ct.  Rep.  540,  the  Court 
said :  "Railroad  companies  are  instruments  of  com- 
merce and  their  business  is  commerce  itself.  State 
Freight  Tax  Case,  15  Wall.  232,  275;  Telegraph  Co. 
v.  Texas,  105  U.  S.  460,  464." 

§  42.  Relations  between  Company  and  Em- 
ployee are  not  Local. 

The  regulation  of  master  and  servant  as  laid 
down  in  the  Employers'  Liability  Act  may  be 
supported  as  a  regulation  of  commerce: 

Because  federal  judicial  power  has  been  as- 
serted by  the  Supreme  Court  over  the  subject- 
matter  of  the  relations  of  master  and  servant 
upon  the  express  ground  that  "it  is  obvious  that 
the  relations  between  the  company  and  employee 
are  not  in  any  sense  of  the  term  local  in  character. 
,  .  .  Further  than  that,  it  is  a  question  in  which 
the  nation  as  a  whole  is  interested.  It  enters 
into  the  commerce  of  the  country.  Commerce 
between  the  States  is  a  matter  of  national  regu- 


TO   INTERSTATE  EMPLOYEES  147 

lation,  and  to  establish  it  as  such  was  one  of 
the  principal  causes  which  led  to  the  adoption 
of  our  Constitution."  Baltimore  and  0.  R.  Co. 
v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct.  Rep. 
914. 

§  43.  Human  Agency  is  most  Important  Fac- 
tor in  Movement  of  Commerce. 

The  regulation  of  master  and  servant  as  laid 
down  in  the  Employers'  Liability  Act  may  be 
supported  as  a  regulation  of  commerce: 

Because  the  power  to  regulate  commerce  among 
the  States  confers  full,  complete,  and  paramount 
authority  on  Congress  to  establish  rules  of  con- 
duct for  such  commerce,  including  rules  govern- 
ing and  protecting  the  human  agency  involved  in 
such  commerce,  which  is  by  far  the  most  im- 
portant factor  involved  therein. 

Congress  is  not  confined  to  the  mere  establish- 
ment of  rules  as  to  the  property  involved  in  such 
commerce,  but  may  without  question  establish 
rules  of  conduct  for  the  protection  and  safety  of 
human  life  involved. 

This  power  has  been  exercised  under  the  com- 
merce clause  with  the  purpose  of  conserving  human 
life  in  the  regulation  of  pilots  and  pilotage.  The 
Court  in  Cooley  v.  Port  Wardens,  12  How.  299, 
speaking  of  the  power  of  Congress  over  pilotage 
under  the  commerce  clause,  said:  "It  extends  to 


148  LIABILITY  OF  RAILROADS 

the  persons  who  conduct  it  as  well  as  to  the  in- 
struments used." 

Again,  in  Sherlock  v.  Ailing,  93  U.  S.  99,  Mr. 
Justice  Field  said  of  the  commerce  clause:  "It  is 
true  that  the  commercial  power  conferred  by  the 
Constitution  is  one  without  limitation.  It  au- 
thorizes legislation  with  respect  to  all  the  subjects 
of  foreign  and  interstate  commerce,  the  persons 
engaged  in  it,  and  the  instruments  by  which  it  is 
carried  on.  And  legislation  has  largely  dealt, 
so  far  as  commerce  by  water  is  concerned,  with  the 
instruments  of  that  commerce.  It  has  embraced 
the  whole  subject  of  navigation,  prescribed  what 
shall  constitute  American  vessels  and  by  whom 
they  shall  be  navigated;  how  they  shall  be  regis- 
tered, or  enrolled  and  licensed;  .  .  .  Since  steam 
has  been  applied  to  the  propulsion  of  vessels,  legis- 
lation has  embraced  an  infinite  variety  of  further 
details,  to  guard  against  accident  and  consequent 
loss  of  life. 

"The  power  to  prescribe  these  and  similar  regu- 
lations necessarily  involves  the  right  to  declare  the 
liability  which  shall  follow  their  infraction.  What- 
ever, therefore,  Congress  determines,  either  as  to 
a  regulation  or  the  liability  for  its  infringement,  is 
exclusive  of  state  authority." 

Congress  has  full  sovereignty  over  interstate 
commerce.  In  the  exercise  of  that  sovereignty, 
effective  regulations  may  be  made  to  cover  every 


TO  INTERSTATE  EMPLOYEES  149 

aspect  which  has  direct  relation  to  such  commerce. 
Its  regulations  are  not  confined  to  the  inanimate 
factors  or  instrumentalities  in  the  commerce  over 
which  it  has  control.  Examples  of  this  legislation 
may  be  found  in  those  federal  statutes  enacted 
to  "provide  for  the  safety  of  crew  and  passengers 
by  prescribing  rules  concerning  boilers,  engines, 
medicines,  bulk,  ventilation,  and  the  like;  also  the 
number  of  the  crew,  or  form  and  nature  of  their 
contract  of  hiring,  their  rights  as  against  masters 
and  owners;  the  powers  of  officers,  etc.  The 
number  of  such  statutes  is  great  and  their  par- 
ticular objects  are  numerous.  .  .  .  No  one  has  as 
yet  questioned  the  authority  of  Congress  to  enact 
such  laws."  Pomeroy's  Constitutional  Law,  §  381. 
Story  on  the  Constitution,  §  1062,  says:  "If 
commerce  does  not  include  navigation,  the  gov- 
ernment of  the  Union  has  no  direct  power  over 
that  subject,  and  can  make  no  law  prescribing 
what  shall  constitute  American  vessels,  or  re- 
quiring that  they  shall  be  navigated  by  American 
seamen.  Yet  this  power  has  been  exercised  from 
the  commencement  of  the  government;  it  has  been 
exercised  with  the  consent  of  all  America,  and  it 
has  been  always  understood  to  be  a  commercial 
regulation.  The  power  over  navigation  and  over 
commercial  intercourse  was  one  of  the  primary 
objects  for  which  the  people  of  America  adopted 
their  government,  and  it  is  impossible  that  the 


150  LIABILITY   OF   RAILROADS 

Convention  should  not  have  so  understood  the 
word  'commerce'  as  embracing  it.  Indeed,  to 
construe  the  power  so  as  to  impair  its  efficacy 
would  defeat  the  very  object  for  which  it  was 
introduced  into  the  Constitution;  for  there  cannot 
be  a  doubt,  that  to  exclude  navigation  and  inter- 
course from  its  scope  would  be  to  entail  upon  us 
all  the  prominent  defects  of  the  confederation  and 
subject  the  Union  to  the  ill-adjusted  systems  of 
rival  States,  and  the  oppressive  preferences  of 
foreign  nations  in  favor  of  their  own  navigation." 

In  the  Lottery  Cases,  188  U.  S.  321,  356,  23  Sup. 
Ct.  Rep.  321,  Mr.  Justice  Harlan  says:  "In  this 
connection  it  must  not  be  forgotten  that  the  power 
of  Congress  to  regulate  commerce  among  the  States 
is  plenary,  is  complete  in  itself,  and  is  subject 
to  no  limitation  except  such  as  may  be  found  in 
the  Constitution." 

The  extent  of  this  power  of  regulation  may  be 
seen  from  the  statement  of  Mr.  Justice  Clifford  in 
the  Bred  Scott  Case,  19  Howard,  393,  614:  "But  it 
may  be  mentioned,  in  passing,  that  under  this 
power  to  regulate  commerce  Congress  has  enacted 
a  great  system  of  municipal  laws  and  extended  it 
over  the  vessels  and  crews  of  the  United  States  on 
the  high  seas  and  in  foreign  ports,  even  over  citi- 
zens of  the  United  States  resident  in  China,  and 
has  established  judicatures,  with  power  to  inflict 
even  capital  punishment  within  that  country." 


TO   INTERSTATE   EMPLOYEES  151 

The  fullness  of  congressional  power  over  inter- 
state commerce  may  be  realized  from  an  exami- 
nation of  the  statutes  in  the  exercise  of  the  com- 
merce power  over  maritime  commerce  which  have 
been  practically  unchallenged  from  the  earliest 
days  of  the  Republic. 

The  power  to  regulate  interstate  commerce  is 
as  full  and  ample  as  the  power  of  regulation  of 
foreign  commerce.  Brown  v.  Houston,  114  U.  S. 
622,  5  Sup.  Ct.  Rep.  1091;  Bowman  v.  Chicago 
&  N.  W.  Ry.  Co.,  125  U.  S.  465,  8  Sup.  Ct. 
Rep.  689,  1062;  Crutcher  v.  Kentucky,  141  U.  S. 
47,  11  Sup.  Ct.  Rep.  851;  Pittsburg  &  S.  Coal 
Co.  v.  Bates,  156  U.  S.  577,  15  Sup.  Ct.  Rep.  415; 
Hopkins  v.  United  States,  171  U.  S.  578,  19  Sup. 
Ct.  Rep.  40. 

And,  as  Judge  Trieber  said  in  the  case  of  Watson 
v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  169  Fed.  Rep. 
942:  ".  .  .  it  is  now  well  settled  that  the  power 
of  Congress  under  the  commerce  clause  is  as 
complete  upon  the  land  [as  upon  the  navigable 
waters  of  the  United  States]."  In  re  Debs,  158 
U.  S.  564,  15  Sup.  Ct.  Rep.  900;  United  States  v. 
Colorado  &  N.  W.  R.  Co.,  157  Fed.  Rep.  343. 
See  also  Lancer  v.  Anchor  Line,  155  Fed.  Rep. 
433. 

In  the  case  of  Spain  v.  St.  Louis  &  S.  F.  R.  Co., 
151  Fed.  Rep.  522,  527,  Judge  Trieber  said:  "The 
expression  of  the  court  that  contracts  with  sailors 


152  LIABILITY  OF  RAILROADS 

for  their  services  are  exceptional  in  their  character 
and  may  be  subjected  to  special  restrictions  for 
the  purpose  of  securing  full  and  safe  carrying  on 
of  commerce  on  the  water  must  be  understood 
to  refer  solely  to  the  propriety  of  the  legislation 
and  not  the  power,  for  no  one  will  contend  now 
that  the  commerce  clause  of  the  Constitution 
grants  greater  power  to  Congress  over  the  com- 
merce carried  on  by  water  than  that  transported 
by  land." 

It  has  been  settled,  since  Gibbons  v.  Ogden, 
9  Wheat.  1,  that  the  power  to  regulate  commerce 
among  the  several  States  is  granted  to  Congress 
in  terms  as  absolute  as  the  power  to  regulate  com- 
merce with  foreign  nations.  The  power  to  regulate 
commerce  among  the  several  States  is  vested  in 
"  Congress  as  absolutely  as  it  would  be  in  a 
single  government  having  in  its  constitution  the 
same  restrictions  on  the  exercise  of  the  power 
as  are  found  in  the  Constitution  of  the  United 
States.  .  .  . 

"It  has  truly  been  said,  that  commerce,  as  the 
word  is  used  in  the  Constitution,  is  a  unit,  every 
part  of  which  is  indicated  by  the  term. 

"If  this  be  the  admitted  meaning  of  the  word, 
in  its  application  to  foreign  nations,  it  must  carry 
the  same  meaning  throughout  the  sentence,  and 
remain  a  unit,  unless  there  is  some  plain  intelligi- 
ble cause  which  alters  it." 


TO  INTERSTATE  EMPLOYEES  153 

Of  the  word  " commerce"  Chief  Justice  Mar- 
shall, in  the  same  case,  at  page  193,  said:  "The 
word  used  in  the  Constitution,  then,  compre- 
hends, and  has  always  been  understood  to  com- 
prehend, navigation  within  its  meaning;  and  a 
power  to  regulate  navigation  is  as  expressly 
granted  as  if  that  term  had  been  added  to  the 
word  'commerce.'" 

In  interstate  commerce  on  the  land,  railroading 
is  in  all  its  constitutional  aspects  the  same  as 
navigation  of  the  sea. 

The  whole  business  and  occupation  of  interstate 
railroading  is  within  the  congressional  power  of 
regulation. 

As  Mr.  Justice  Brewer  said,  in  In  re  Debs,  158 
U.  S.  564,  590,  15  Sup.  Ct.  Rep.  900:  "Up  to  a 
recent  date  commerce,  both  interstate  and  inter- 
national, was  mainly  by  water,  and  it  is  not 
strange  that  both  the  legislation  of  Congress  and 
the  cases  in  the  courts  have  been  principally  con- 
cerned therewith.  The  fact  that  in  recent  years 
interstate  commerce  has  come  mainly  to  be  carried 
on  by  railroads  and  over  artificial  highways  has  in 
no  manner  narrowed  the  scope  of  the  constitu- 
tional provision,  or  abridged  the  power  of  Congress 
over  such  commerce.  On  the  contrary,  the  same 
fullness  of  control  exists  in  the  one  case  as  in  the 
other,  and  the  same  power  to  remove  obstructions 
from  the  one  as  from  the  other. 


154  LIABILITY   OF   RAILROADS 

"Constitutional  provisions  do  not  change,  but 
their  operation  extends  to  new  matters  as  the 
modes  of  business  and  the  habits  of  life  of  the 
people  vary  with  each  succeeding  generation.  The 
law  of  the  common  carrier  is  the  same  to-day  as 
when  transportation  on  land  was  by  coach  and 
wagon,  and  on  water  by  canal  boat  and  sailing 
vessel,  yet  in  its  actual  operation  it  touches  and 
regulates  transportation  by  modes  then  unknown, 
the  railroad  train  and  the  steamship.  Just  so  is 
it  with  the  grant  to  the  national  government  of 
power  over  interstate  commerce.  The  Constitu- 
tion has  not  changed.  The  power  is  the  same. 
But  it  operates  to-day  upon  modes  of  interstate 
commerce  unknown  to  the  fathers,  and  it  will 
operate  with  equal  force  upon  any  new  modes  of 
such  commerce  which  the  future  may  develop." 

In  the  fullness  of  its  power  and  authority  over 
commerce,  Congress  may  regulate  a  carrier  or  any 
of  its  instrumentalities  on  sea  or  land;  may  regu- 
late vessels,  railroads,  pilotage,  locomotives,  cars, 
and  trains;  may  regulate  the  liabilities  of  ship- 
owners to  shippers,  and  to  seamen;  may  regulate 
the  contract  of  employment  of  seamen;  may  regu- 
late freight  rates,  car  distribution,  combinations 
of  carriers  in  restraint  of  trade;  may  prohibit  the 
transportation  of  commodities  in  the  sale  of  which 
the  carrier  has  direct  interest;  and  generally  may 
determine  the  policy  and  conditions  under  which 


TO   INTERSTATE   EMPLOYEES  155 

carriers  shall  conduct  the  business  of  interstate  or 
foreign  commerce.  Therefore,  there  is  no  limi- 
tation of  the  power  which  excludes  the  regulation 
of  the  relation  of  master  and  servant  when  such 
regulation  is  found  by  Congress  to  be  good  public 
policy  in  the  enactment  of  legislation  under  the 
commerce  clause.  The  regulation  of  this  relation, 
covering  as  it  does  the  rights  and  duties  and  obli- 
gations and  remedies  of  more  than  a  million  men 
engaged  in  the  movement  of  interstate  traffic,  may 
be  most  important  and  salutary  in  its  effect  upon 
the  free  and  unrestricted  movement  of  commerce 
between  the  States.  In  many  aspects  labor  is  the 
most  important  factor  in  the  movement  of  inter- 
state commerce,  and  if  legislation  upon  the  rights, 
remedies,  and  obligations  of  the  employees  is  be- 
yond the  power  of  Congress  a  vital  factor  in  the 
movement  of  interstate  commerce  will  be  ex- 
cluded from  legislative  control. 

Unless  a  corporation  employs  servants  it  can- 
not act.  The  human  element  is  the  vital  ele- 
ment in  its  operation. 

A  railroad  corporation  itself  cannot  move  com- 
merce. It  can  only  move  commerce  through  the 
employment  of  agents  and  instrumentalities.  The 
employment,  therefore,  is  an  essential  to  any  move- 
ment of  commerce.  The  regulation  of  the  employ- 
ment, that  is,  the  regulation  of  the  contract  of  the 
only  railroad  agents  who  can  make  the  movement 


156  LIABILITY   OF   RAILROADS 

of  commerce  possible,  is  a  regulation  of  commerce, 
for  the  reason  that  an  employment  contract  is  a 
condition  precedent  to  any  movement  of  com- 
merce by  a  corporation. 

To  assume  the  right  of  Congress  to  regulate  the 
corporation  itself,  which  has  only  a  formal  exist- 
ence as  a  legal  entity,  because  such  corporation  is 
engaged  in  commerce  and  to  deny  to  it  the  regula- 
tion of  the  human  agencies  who  actually  move  the 
commerce  seems  highly  technical  and  illogical. 
Unless  Congress  has  full  power  to  regulate  all 
who  engage  in  commerce,  in  any  capacity,  whether 
as  agents,  directors,  or  employees,  the  field  of  its 
power  of  regulation  is  restricted  and  the  effective- 
ness of  its  full  control  over  the  subject-matter  of 
commerce  is  impaired. 


TO   INTERSTATE  EMPLOYEES  157 


CHAPTER   X 

THE  EMPLOYERS'  LIABILITY  ACT  DOES  NOT  UN- 
duly abridge,  the  freedom  of  contract 

§  44.  The  Contention  of  the  Railroad 
Counsel. 

It  is  objected  by  representatives  of  the  rail- 
roads that  the  Employers'  Liability  Act  is  in- 
valid for  the  reason  that  it  is  in  violation  of 
the  Fifth  Amendment  to  the  Constitution  of  the 
United  States.  The  Act,  they  say,  is  an  inva- 
sion of  the  "freedom  of  contract"  which  is  guar- 
anteed as  liberty  and  property  by  the  Fifth 
Amendment.  Their  contention  on  this  point  is 
sustained  by  the  Supreme  Court  of  Errors  of 
Connecticut  in  its  opinion  in  the  case  of  Hoxie  v. 
New  York,  N.  H.  &  H.  R.  Co.,  82  Conn.  352. 
The  declaration  of  the  court  in  the  Hoxie  case 
is  as  follows:  "It  denies  them  [employees]  one 
and  all  that  liberty  of  contract  which  the  Consti- 
tution of  the  United  States  secures  to  every 
person  within  their  jurisdiction." 

With  due  deference  to  the  learning  and  ability 
of  the  counsel  who  made  this  contention  and  to 
the  high  standing  of  the  court  which  sustained  it, 
it  is  submitted  that  their  position  on  this  aspect 


158  LIABILITY   OF   RAILROADS 

•  of  the  controversy  is  untenable.  There  are  some 
conclusive  reasons  why  their  position  cannot  be 
sustained. 

§  45.  No  Limitation  upon  Power  of  Con- 
gress to  Restrict  the  Exercise  of  the 
Right  of  Contract. 

No  restriction  is  made  in  the  Constitution 
which,  when  necessary  to  the  exercise  of  its  express 
powers,  prohibits  Congress  from  impairing  the  obli- 
gation of  an  executed  contract,  and  therefore  there 
is  no  limitation  of  its  power  to  restrict  the  exercise 
of  the  right  of  contract.  —  If  Congress  may  impair 
the  obligation  of  a  completed  contract,  it  would 
be  a  strange  anomaly  which  would  exclude  from 
its  power  the  right  of  interference  with  an  in- 
choate contract,  or  the  option,  right  or  liberty 
to  make  a  contract. 

When  an  actual  existent  contract  may  be  an- 
nulled by  an  act  of  Congress  when  its  obligations 
come  in  conflict  with  the  congressional  enactment 
in  the  exercise  of  some  express  power  of  the  Con- 
stitution, it  seems  to  be  a  matter  of  grave  doubt 
if  the  theoretical  right  of  contract  will  be  held  to 
be  a  barrier  to  the  exercise  of  congressional  power 
which  is  otherwise  constitutional.  Constitutional 
prohibition  against  impairing  the  obligation  of 
contracts  is  a  prohibition  upon  the  legislatures  of 
the  States  and  not  upon  Congress. 


TO   INTERSTATE  EMPLOYEES  159 

In  Mitchell  v.  Clark,  110  U.  S.  633,  4  Sup.  Ct. 
Rep.  170,  312,  Mr.  Justice  Miller,  delivering  the 
opinion  of  the  court,  said:  "It  is  no  answer  to 
say  that  it  interferes  with  the  validity  of  con- 
tracts, for  no  provision  of  the  Constitution  pro- 
hibits Congress  from  doing  this  as  it  does  the 
States;  and  where  the  question  of  the  power 
of  Congress  arises,  as  in  the  legal  tender  cases 
and  in  the  bankruptcy  cases,  it  does  not  depend 
upon  the  incidental  effect  of  its  exercise  on  con- 
tracts, but  on  the  existence  of  the  power  itself." 
Other  cases  which  seem  also  to  point  to  the  same 
conclusion  are  Saterlee  v.  Matthewson,  2  Peters, 
380;  Legal  Tender  Cases,  12  Wall.  457,  550. 

It  would  seem,  therefore,  to  be  reasonably  con- 
clusive that  the  Constitution  vests  in  Congress 
full  sovereignty  over  any  subject  within  its  ex- 
press powers,  unlimited  by  the  restraint  which  is 
upon  the  States,  to  impair  the  obligation  of  con- 
tracts, and  that,  therefore,  the  contention  that  an 
act  of  Congress  invades  the  liberty  of  contract 
of  an  individual  is  no  constitutional  barrier  to  the 
exercise  of  legislation  by  Congress,  which  is  other- 
wise constitutional. 

Where  Congress  is  clothed  with  power  by  any 
of  the  express  provisions  of  the  Constitution,  its 
ample  sovereign  power  over  the  subject-matter 
may  not  be  limited  or  restricted  by  the  citizen's 
private  right  of  contract.     The  powers  conferred 


160  LIABILITY  OF   RAILROADS 

upon  Congress  are  of  too  serious  and  grave  im- 
portance to  be  subject  to  the  exercise  of  a  right  of 
contract  at  the  will  of  the  citizen  which  would 
operate  to  the  nullification  of  national  power. 

This  was  made  so  clear  and  conclusive  by  the 
decision  of  the  Supreme  Court  in  the  Legal  Tender 
Cases,  12  Wall.  457,  551,  that  the  following  quo- 
tation from  the  opinion  therein  would  seem  to 
settle  the  controversy  upon  this  aspect  of  the 
question:  "But,  as  already  intimated,  the  objec- 
tion misapprehends  the  nature  and  extent  of  the 
contract  obligation  spoken  of  in  the  Constitu- 
tion. As  in  a  state  of  civil  society,  the  property 
of  a  citizen  or  subject  is  ownership,  subject  to  the 
lawful  demands  of  the  sovereign,  so  contracts 
must  be  understood  as  made  in  reference  to  the 
possible  exercise  of  the  rightful  authority  of  the 
government  and  no  obligation  or  contract  can 
extend  to  the  defeat  of  legitimate  government 
authority." 

§  46.  Theoretical  Freedom  of  Contract  is 
sometimes  against  public  policy. 
Theoretical  freedom  of  contract  may  be  impaired 
by  legislation  where  the  parties  do  not  stand 
on  an  equal  footing,  in  order  to  prevent  the  exer- 
cise of  power  of  one  over  another,  to  coerce  the  ac- 
ceptance of  onerous  terms  against  the  will  and 
contrary  to  the  real  wishes  of  the  other,  or  when 


TO   INTERSTATE  EMPLOYEES  161 

any  public  interest  or  public  policy  is  prejudicially 
affected  by  such  exercise  of  power.1  —  In  H olden 
v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  Rep.  383, 
the  Supreme  Court  said:  "The  legislature  has 
also  recognized  the  fact,  which  the  experience  of 
legislators  in  many  of  the  States  has  corroborated, 
that  the  proprietors  of  these  establishments  and 
their  operatives  do  not  stand  on  an  equality  and 
that  their  interests  are,  to  a  certain  extent,  con- 
flicting. ...  In  other  words,  the  proprietors  lay 
down  the  rules  and  the  laborers  are  practically 
constrained  to  obey  them.  In  such  cases  self- 
interest  is  often  an  unsafe  guide,  and  the  legisla- 
ture may  properly  interpose  its  authority.  .  .  . 
But  the  fact  that  both  parties  are  of  full  age  and 
competent  to  contract  does  not  necessarily  de- 

1  In  the  recent  case  of  Poll  v.  Numa  Block  Coal  Company 
(Supreme  Court  of  Iowa),  127  N.  W.  Rep.  1105,  Judge  Weaver, 
delivering  the  opinion  of  the  court,  said: 

"Notwithstanding  the  absolute  liberty  with  which  every 
individual  legally  endowed  to  enter  into  contract  for  his  personal 
labor  or  service  and  his  equal  legal  right  to  abandon  such  service 
at  any  time  subject  only  to  liability  for  damages  in  case  such  act 
be  not  justified,  it  is  nevertheless  true  in  practical  life  that  poverty, 
scarcity  of  employment,  dependent  family,  and  other  circum- 
etances  often  impose  moral  compulsion  upon  the  laborer  to  accept 
employment  upon  such  terms  and  under  such  conditions  as  are 
offered  him,  and  it  is  in  recognition  of  this  fact,  as  well  as  the 
further  facts,  that  society  has  a  direct  interest  in  preserving  the 
lives  and  promoting  the  well-being  of  all  persons  engaged  in 
productive  industry,  that  laws  have  been  enacted  to  protect  them 
against  unnecessary  hazard  of  injury  by  failure  of  employers  to 
exercise  proper  care  for  their  safety." 


162  LIABILITY   OF   RAILROADS 

prive  the  State  of  the  power  to  interfere  when  the 
parties  do  not  stand  upon  an  equality,  or  where 
the  public  health  demands  that  one  party  to  the 
contract  shall  be  protected  against  himself." 

In  Allgeyer  v.  Louisiana,  165  U.  S.  578,  17 
Sup.  Ct.  Rep.  427,  the  Court  said:  ".  .  .  It 
may  be  conceded  that  this  right  to  contract 
in  relation  to  persons  or  property,  or  to  do 
business  within  the  jurisdiction  of  the  State,  may 
be  regulated  and  sometimes  prohibited  when  the 
contracts  or  business  conflict  with  the  policy  of 
the  State  as  contained  in  the  statutes." 

That  this  inequality  of  standing  of  the  parties 
is  a  basis  for  legislative  interference  with  "  free- 
dom of  contract"  is  recognized  by  the  Supreme 
Court  in  the  case  of  Schlemmer  v.  Buffalo,  Ro- 
chester &  Pittsburgh  Ry.  Co.,  205  U.  S.  1,  27  Sup. 
Ct.  Rep.  407,  in  the  opinion  of  Mr.  Justice  Holmes, 
where  he  said,  speaking  of  a  statute  which  has 
marked  features  of  resemblance  to  the  statute 
here  under  consideration:  "Probably  the  modifi- 
cation of  this  general  principle  by  some  judicial 
decisions  and  by  statutes  like  section  8  is  due  to 
an  opinion  that  men  who  work  with  their  hands 
have  not  always  the  freedom  and  equality  of 
position  assumed  by  the  doctrine  of  laissez  faire 
to  exist." 

And  Mr.  Justice  Bradley,  in  New  York  Central 
R.   Co.   v.   Lockwood,    17    Wall.   357,   justified   a 


TO   INTERSTATE  EMPLOYEES  163 

legislative  invasion  of  the  "freedom  of  contract" 
between  carriers  and  their  shippers  upon  the 
ground  of  the  inequality  of  standing  of  the  parties, 
and  said:  "The  carrier  and  his  customer  do  not 
stand  on  a  footing  of  equality.  The  latter  is  only 
one  individual  of  a  million.  He  cannot  afford  to 
haggle  or  stand  out  and  seek  redress  in  the  courts. 
His  business  will  not  admit  such  a  course.  He 
prefers, .  rather,  to  accept  any  bill  of  lading  or 
sign  any  paper  the  carrier  presents;  often,  indeed, 
without  knowing  what  the  one  or  the  other  con- 
tains. In  most  cases  he  has  no  alternative  but 
to  do  this  or  abandon  his  business.  ...  If  the 
customer  had  any  real  freedom  of  choice,  if  he 
had  any  reasonable  or  practicable  alternative,  and 
if  the  employment  of  the  carrier  were  not  a  public 
one,  charging  him  with  the  duty  of  accommodat- 
ing the  public  in  the  line  of  his  employment,  then, 
if  the  customer  chose  to  assume  the  risk  of  negli- 
gence, it  could  with  more  reason  be  said  to  be  his 
private  affair  and  no  concern  of  the  public.  But 
the  condition  of  things  is  entirely  different,  and 
especially  so  under  the  modified  arrangements 
which  the  carrier  in  trade  has  assumed.  The  busi- 
ness is  almost  concentrated  in  a  few  powerful 
corporations,  whose  position  in  the  body  politic 
enables  them  to  control  it.  They  do,  in  fact, 
control  it,  and  impose  such  conditions  upon 
travel  and  transportation  as  they  see  fit,  which 


164  LIABILITY  OF   RAILROADS 

the  public  is  compelled  to  accept.  These  circum- 
stances furnish  an  additional  argument,  if  any 
were  needed,  to  show  that  the  conditions  imposed 
by  common  carriers  ought  not  to  be  adverse  (to 
say  the  least)  to  the  dictates  of  public  policy  and 
morality." 

Mr.  Justice  Stafford,  in  the  case  of  Potter  v. 
Baltimore  &  Ohio  R.  Co.,  37  Washington  Law 
Reporter,  466,  well  stated  the  test  as  to  the  bear- 
ing of  this  question  of  " freedom  of  contract"  upon 
the  validity  of  this  legislation  when  he  said: 
"The  real  heart  of  the  question  is  whether  the 
circumstances  and  situation  are  such  that  the  law- 
making body  has  a  right  to  say  that  the  contract 
is  made  between  parties,  one  of  whom  has  pre- 
sumably an  undue  advantage  over  the  other." 
And  the  same  judge,  in  the  case  of  Goldenstein  v. 
Baltimore  &  Ohio  R.  Co.,  37  Washington  Law 
Reporter,  2,  said:  "The  theory  of  the  statute 
seems  to  be  that  during  the  period  when  the  re- 
lation of  employer  and  employee  exists  or  is  in 
contemplation,  the  parties  do  not  stand  on  a 
level,  but  that  the  employee  or  person  applying 
for  employment  is  subject  to  the  undue  influence 
of  the  employer,  as  the  borrower  is  supposed  to 
be  under  the  like  power  of  the  lender  in  the  matter 
of  interest." 

The  real  test  is  happily  suggested  by  Professor 
Richard  T.  Ely  in  his  "  Outlines  of  Economics  " 


TO   INTERSTATE   EMPLOYEES  165 

as  follows:  "True  liberty  is  not  simply  the  per- 
mission but  the  power  to  act  freely." 

In  Narramore  v.  Cleveland,  C,  C.  &  St.  L. 
Ry.  Co.,  96  Fed.  Rep.  298,  302,  the  Court  said, 
speaking  through  Judge  Taft:  "  The  only  ground 
for  passing  such  a  statute  is  found  in  the  in- 
equality of  terms  upon  which  the  railway  company 
and  its  servants  deal  in  regard  to  the  dangers 
of  their  employment.  The  manifest  legislative 
purpose  was  to  protect  the  servant  by  positive 
law,  because  he  had  not  previously  shown  him- 
self capable  of  protecting  himself  by  contract; 
and  it  would  entirely  defeat  this  purpose  thus  to 
permit  the  servant  'to  contract  the  master  out' 
of  the  statute."  In  this  same  case  Judge  Taft 
quotes  the  case  of  Baddeley  v.  Granville,  19  Q.  B. 
Div.  423,  in  which  the  English  court  says,  at  page 
426:  "An  obligation  imposed  by  statute  ought  to 
be  capable  of  enforcement  with  respect  to  all 
future  dealings  between  parties  affected  by  it.  As 
to  the  result  of  past  breaches  of  the  obligation, 
people  may  come  to  what  agreements  they  like, 
but  as  to  future  breaches  of  it  there  ought  to  be 
no  encouragement  given  to  the  making  of  an  agree- 
ment between  A  and  B,  that  B  shall  be  at  lib- 
erty to  break  the  law  which  has  been  passed  for 
the  protection  of  A.  If  the  supposed  agreement 
come  to  this :  that  the  master  employs  the  servant 
on  the  terms  that  the  latter  shall  waive  the  breach 


166  LIABILITY  OF   RAILROADS 

by  the  master  of  an  obligation  imposed  on  him 
for  the  benefit  of  others  as  well  as  of  himself,  such 
an  agreement  would  be  in  violation  of  public 
policy,  and  ought  not  to  be  listened  to." 

§  47.  Liberty  of  Contract  is  merely  a 
Common-Law  Right. 

Liberty  of  contract  is  not  a  right  guaranteed  by 
the  Constitution  and  is  not  a  vested  right,  but  is,  if 
not  a  mere  economic  right,  merely  a  common-law 
right,  which  may  be  affected  by  the  normal  exercise 
of  legislative  power  in  the  public  interest.  —  "Lib- 
erty of  contract"  is  a  misnomer.  Contract  is  ob- 
ligation. By  every  contract  there  is  a  subtraction 
from  liberty. 

"Liberty  to  contract"  would  be  a  more  accu- 
rate expression  of  the  meaning  of  those  who  use 
the  term  "liberty  of  contract." 

There  is  much  confusion  in  the  use  of  this 
term.    "Liberty  of  contract"  is  called  property. 

If  it  is  liberty,  it  is  not  property.  Liberty  implies 
volition,  which  cannot  be  predicated  of  property. 

If  it  is  property,  it  is  not  liberty. 

It  may  be  doubted  if  the  right  known  as  "lib- 
erty of  contract"  is  more  than  an  economic  right, 
which  has  its  place  and  weight  in  argument  upon 
questions  of  legislative  policy.  But  it  is  not  a 
fixed  and  determined  constitutional  right,  which 
no  power  of  legislation  can  invade  or  impair. 


TO   INTERSTATE   EMPLOYEES  167 

Congress  is  not  even  bound  by  the  restriction 
upon  the  States  forbidding  the  impairment  of  the 
obligation  of  actual  contracts.  Can  it  be  that  the 
right  to  contract  is  more  sacred  than  the  rights 
growing  out  of  an  existent  contract  which  Con- 
gress in  the  exercise  of  its  powers  to  regulate 
commerce  may  invade? 

Is  the  right  to  contract  property?  The  right 
to  contract  is  a  right  which  exists  before  the  con- 
summation of  a  contract.  It  is  not  a  right  to  a 
contract.  It  is  the  mere  option  of  one  party  to 
negotiate  a  contract  with  another,  if  that  other 
is  willing  to  contract.  It  is  abstract  and  not 
concrete. 

The  right  to  contract  is  not  a  right  in  or  to  any 
particular  contract,  and  cannot  be  a  property 
right,  because  its  possessor  as  such  has  no  interest 
or  right  in  or  to  any  specific  contract,  or  in  or  to 
any  particular  or  defined  property.  It  is  too  vague 
and  intangible,  and  is,  as  the  Supreme  Court  of 
Massachusetts  said  of  " profits,"  "more  uncertain 
in  its  vicissitudes  than  the  rights  which  the  Con- 
stitution undertakes  absolutely  to  protect."  Saw- 
yer v.  Commonwealth,  182  Mass.  245. 

The  right  to  contract  vests  no  right  in  any  con- 
tract or  to  any  contract.  It  is  inchoate  and  in- 
determinate, and  has  no  relation  in  itself  to  any 
particular  contract,  to  any  contract  with  any  par- 
ticular individual,  and  has  no  relation  or  applica- 


108  LIABILITY   OF   RAILROADS 

tion  to  any  particular  property  or  even  to  any 
specific  cause  of  action. 

It  lacks  every  element  of  property.  This  was 
clearly  indicated  by  the  declaration  in  the  majority 
opinion  in  the  Slaughter-House  Cases,  16  Wall.  36, 
80:  "And  it  is  sufficient  to  say  that  under  no  con- 
struction of  that  provision  that  we  have  ever  seen, 
or  any  that  we  deem  admissible,  can  the  restraint 
imposed  by  the  State  of  Louisiana  upon  the  exer- 
cise of  their  trade  by  the  butchers  of  New  Orleans 
be  held  to  be  a  deprivation  of  property  within  the 
meaning  of  that  provision."  And  that  the  antici- 
pated profits  from  a  future  or  prospective  con- 
tract cannot  be  deemed  property  seems  to  be 
indicated  in  the  opinion  in  Munn  v.  People,  69 
111.  80,  91:  "  Anticipated  profits  are  not  and 
cannot  be  held  and  regarded  as  property  in  the 
ownership  or  possession  of  him  who  owns  the 
article  out  of  which  profits  are  expected  to  flow. 
The  property  is  one  thing,  and  remains  untouched 
—  the  profits  are  not  in  esse  and  cannot  be  claimed 
as  property.  When  it  is  said  one  is  deprived  of 
his  property,  the  understanding  is  it  has  been 
taken  away  from  him  —  he  is  divested  of  title 
and  possession." 

The  right  to  contract  may  be  properly  re- 
garded as  no  more  than  a  part  of  the  abstract 
economic  liberty  of  action  of  the  individual 
which  under  all  sj'stcms  of  government  may  be 


TO   INTERSTATE   EMPLOYEES  169 

controlled  by  legislation.  It  is  of  the  same  quality 
as  the  freedom  to  trade,  which  the  commercial 
power  may  regulate  and  restrain.  It  is  like  the 
freedom  to  eat  and  drink,  which  food  laws  and 
other  statutory  regulations  may  reach  and  con- 
trol where  the  safety  of  the  public  so  requires. 

Sumptuary  legislation  impairing  the  freedom  of 
the  individual  to  buy  and  sell  at  his  pleasure  has 
long  been  sustained,  and  it  never  has  been  suc- 
cessfully contended  that  the  right  to  buy,  the 
freedom  to  contract,  was  any  impairment  of  the 
constitutionality  of  such  legislation. 

The  right  to  buy  labor  is  no  more  sacred  than 
the  right  to  buy  property.  The  right  to  buy  prop- 
erty, when  any  large  public  interest  is  involved 
and  governmental  authority  exists  otherwise  over 
the  subject-matter,  may  be  legislatively  regulated 
without  invasion  of  the  liberty  and  property  clause 
of  the  Fifth  Amendment. 

The  right  to  contract  is  not  so  direct  and  spe- 
cific a  right  as  the  right  of  an  owner  to  build  upon 
his  own  land.  The  latter  is  properly  termed  a 
property  right,  because  it  inheres  to  specific  prop- 
erty. Yet  where  public  interests  are  involved,  as, 
for  example,  the  public  health  or  safety  from  fire 
menace,  the  most  stringent  governmental  regula- 
tions are  permissible  even  with  summary  provi- 
sions for  enforcement.  These  laws  stand  on  a 
basis  of  authorized  legislative  power,  and  there- 


170  LIABILITY  OF   RAILROADS 

fore  the  provisions  of  the  Fifth  Amendment  do 
not  reach  them. 

No  greater  force  and  efficacy  can  be  judicially 
attributed  to  the  inchoate  right  to  employ  such 
labor  as  is  willing  to  be  employed  than  to  the  right 
of  an  owner  to  build  on  his  own  property. 

This  seems  to  be  clearly  indicated  by  an 
illustration  used  by  Marshall,  C.  J.,  in  Gibbons 
v.  Ogden,  9  Wheat.  1,  at  page  208:  "A  State, 
it  is  said,  or  even  a  private  citizen,  may  con- 
struct lighthouses.  But  gentlemen  must  be  aware 
that  if  this  proves  a  power  in  a  State  to  regu- 
late commerce,  it  proves  that  the  same  power 
is  in  the  citizen.  States,  or  individuals  who  own 
lands,  may,  if  not  forbidden  by  law,  erect  on 
those  lands  what  buildings  they  please;  but  this 
power  is  entirely  distinct  from  that  of  regu- 
lating commerce,  and  may,  we  presume,  be  re- 
strained, if  exercised  so  as  to  produce  a  public 
mischief."  If  an  owner  of  real  estate  may  be 
"restrained"  under  the  commerce  power,  it  does 
not  seem  as  if  that  power  were  inefficacious  when 
it  comes  in  conflict  with  the  inchoate  right  of  an 
individual  to  make  any  indefinite  contract  for 
labor  he  may  be  able  to  make,  if  he  chooses  to 
make  it. 

But  if  "freedom  to  contract"  is  either  liberty 
or  property,  or  both,  it  may  be  affected  by  legis- 
lation, if  due  process  is  provided  in  the  Act.    And 


TO   INTERSTATE  EMPLOYEES  171 

as  the  Act  now  under  discussion  provides  for 
"due  process,"  a  regular  hearing  before  a  judicial 
tribunal,  a  trial  by  jury  and  all  the  formalities  of 
"due  process,"  the  provisions  of  the  Act  are 
unaffected  by  the  "due  process"  provision  of  the 
Fifth  Amendment. 

No  shipper  of  freight  can  assert  a  "freedom  of 
contract"  as  a  ground  of  the  free  exercise  of  his 
will  concurrently  with  that  of  the  managers  of  a 
railroad  to  fix  freight  rates  regardless  of  the  power 
to  regulate  commerce.  New  York  Central  R.  Co. 
v.  Lockwood,  17  Wall.  357. 

If  "freedom  of  contract"  is  non-existent  where  a 
rate  contract  to  move  freight  is  in  question,  if  the 
Fifth  Amendment  has  no  effect  in  such  case,  how 
can  it  be  asserted  where  a  labor  contract  to  move 
traffic  is  in  question? 

In  the  above  query  it  is  of  course  assumed  that 
in  each  case  the  legislative  regulation  is  otherwise 
a  reasonable  exercise  of  the  power  existing  under 
the  commerce  clause. 

"Freedom  of  contract"  is  not  a  constitutional 
right.  It  is  a  matter  of  extreme  doubt  if  anything 
more  can  be  claimed  for  the  right  to  contract  than 
that  it  is  a  common-law  right  conferring  upon  the 
individual  liberty  of  action  which  cannot  be 
taken  away  except  by  some  law  passed  in  due 
conformity  to  the  due  process  provision  of  the 
Constitution.     If  it  is  a  mere  common-law  right, 


172  LIABILITY   OF  RAILROADS 

it  is  not  a  vested  right.  There  is  no  vested  right 
in  a  rule  of  the  common  law,  as  was  determined 
by  the  Supreme  Court  in  Munn  v.  Illinois,  94 
XJ.  S.  113.  At  page  134  the  Court  said:  "A  person 
has  no  property,  no  vested  interest,  in  any  rule 
of  the  common  law.  That  is  only  one  of  the  forms 
of  municipal  law,  and  is  no  more  sacred  than  any 
other.  Rights  of  property  which  have  been  created 
by  the  common  law  cannot  be  taken  away  with- 
out due  process;  but  the  law  itself,  as  a  rule  of 
conduct,  may  be  changed  at  will,  even  at  the  whim 
of  the  legislature,  unless  prevented  by  constitu- 
tional limitations.  Indeed,  the  great  office  of 
statutes  is  to  remedy  defects  in  the  common  law 
as  they  are  developed  and  to  adapt  it  to  the 
changes  of  time  and  circumstances." 

In  Bertholf  v.  O'Reilly,  74  N.  Y.  509,  524,  the 
Court  said :  ' '  The  legislature  may  alter  or  repeal 
the  common  law.  It  may  create  new  offenses, 
enlarge  the  scope  of  civil  remedies,  and  fasten  re- 
sponsibility for  injuries  upon  persons  against  whom 
the  common  law  gives  no  remedy.  We  do  not 
mean  that  the  legislature  may  impose  upon  one 
man  liability  for  an  injury  with  which  he  has  no 
connection.  But  it  may  change  the  rule  of  the 
common  law,  which  looks  only  to  the  proximate 
cause  of  the  mischief  in  attaching  legal  responsi- 
bility and  allow  a  recovery  to  be  had  against 
those  whose  acts  contributed,  although  remotely, 


TO   INTERSTATE-  EMPLOYEES  173 

to  produce  it.  .  .  .  It  is  an  extension  by  the 
legislature  of  the  principle  expressed  in  the  maxim 
'  Sic  utere  tuo  ut  alienum  non  Icedas '  to  cases  to 
which  it  had  not  before  been  applied,  and  the 
propriety  of  such  application  is  a  legislative  and 
not  a  judicial  question." 

Where  large  questions  of  social  economy  of  the 
State  are  affected,  the  legislature  in  its  sound  dis- 
cretion may  legislate  according  to  its  view  of  the 
public  policy  involved,  unaffected  and  uncon- 
trolled by  the  common-law  rights  of  the  citizen, 
if  the  physical  liberty  of  the  citizen  is  not  violated 
and  no  right  of  the  citizen  to  any  specific  property, 
real  or  personal,  is  invaded. 

But  legislation,  if  supported  by  express  consti- 
tutional power  otherwise,  may  authorize  a  viola- 
tion of  the  personal  liberty  of  the  citizen  or  an 
invasion  of  the  right  of  private  property,  if  com- 
pensation for  the  property  "taken"  is  provided 
in  the  Act,  and  if  "due  process  of  law"  is  pro- 
vided in  its  execution. 

And  no  abstract,  intangible  right  not  connected 
with  physical  liberty  and  not  specifically  related 
to  property,  real  or  personal,  can  in  any  manner 
be  an  impediment  to  the  power  of  legislation  where 
the  subject-matter  of  the  legislation  is  otherwise 
within  the  constitutional  power  of  the  State  or 
nation. 

An  arrest  is  clearly  within  the  scope  of  the 


174  LIABILITY  OF   RAILROADS 

Fifth  Amendment.  Yet  arrests  are  authorized 
without  violation  of  the  Fifth  Amendment  when- 
ever legislation  otherwise  constitutional  authorizes 
arrest  as  a  penalty  for  its  violation.  If  the  Fifth 
Amendment  does  not  avail  as  a  protection  against 
the  physical  invasion  of  actual  liberty,  how  una- 
vailing constitutionally  must  it  be  when  only  a 
theoretical  and  intangible  right  is  involved,  even 
though  such  right  may  be  called  a  "right  of 
property"? 

In  Moyer  v.  Peabody,  212  U.  S.  78,  84,  29  Sup. 
Ct.  Rep.  235,  Mr.  Justice  Holmes,  delivering  the 
opinion  of  the  court,  said:  "But  it  is  familiar  that 
what  is  due  process  of  law  depends  upon  circum- 
stances. It  varies  with  the  subject-matter  and  the 
necessities  of  the  situation.  Thus,  summary  pro- 
ceedings suffice  for  taxes  and  executive  decisions 
for  exclusion  from  the  country.  Murray  v.  Ho- 
boken  Land  &  Improvement  Co.,  18  How.  272; 
United  States  v.  Ju  Toy,  198  U.  S.  253,  263,  25 
Sup.  Ct.  Rep.  644.  .  .  .  When  it  comes  to  a  de- 
cision by  the  head  of  the  State  upon  a  matter  in- 
volving its  life,  the  ordinary  rights  of  individuals 
must  yield  to  what  he  deems  the  necessities  of 
the  moment.  Public  danger  warrants  the  substi- 
tution of  executive  process  for  judicial  process." 

If  this  position  of  the  court  in  the  Moyer  Case 
is  tenable,  may  it  not  with  much  greater  force  be 
said  in  a  case  not  involving  the  actual  liberty  of 


TO   INTERSTATE   EMPLOYEES  175 

the  person,  as  the  Moyer  Case  did,  but  only  in- 
volving an  abstract  theoretical  right  to  freedom 
of  contract,  that  when  it  comes  to  a  decision  by 
the  nation  through  its  legislative  department, 
upon  a  matter  involving  the  safety  of  human  life, 
the  ordinary  right  to  be  free  to  contract  must 
yield  to  what  the  nation,  through  its  legislature, 
deems  the  necessities  of  the  situation? 

§  48.  This  Act  Frees  Employee  from  the 
Burden  of  an  Onerous  Legal  Fiction. 
This  particular  legislation  aims  to  permit  the 
employee  to  sell  his  personal  services  to  an  inter- 
state railroad  free  from  the  extraneous  and  fictitious 
condition  attached  to  every  contract  of  employment 
by  legal  construction  not  assented  to  by  the  parties, 
that  the  workman  shall  assume  the  risk  of  the  mani- 
fest perils  of  his  employment  and  thus  the  Act  in  its 
primary  provision  permits  a  freedom  from  the  oper- 
ation of  an  onerous  legal  fiction,  and  relieves  from 
a  contractual  assumption  never  assented  to  by  the 
employee.  The  injustice  of  the  release  of  the  em- 
ployer, under  the  rule  of  assumption  of  risk  as  ju- 
dicially established,  having  been  made  apparent  to 
the  legislature,  it  had  the  right  to  prohibit  private 
contracts  intended  to  continue  the  injustice  which 
the  law  was  enacted  to  terminate.  — "  Liberty  of 
contract"  is  strangely  out  of  place  as  an  objec- 
tion to  this  particular  legislation.     This  legisla- 


176  LIABILITY  OF  RAILROADS 

tion  aims  to  leave  the  employee  free  to  sell  his 
personal  services  to  an  interstate  railroad  with- 
out any  conditions  attached  thereto  by  a  fiction 
or  construction  of  law.  The  employee  never  ex- 
pressly assumes  the  risk  of  the  perils  of  the  em- 
ployment, including  the  peril  of  injury  by  a 
fellow-servant.  The  assumption  of  this  risk  is 
a  legal  fiction  arbitrarily  placed  upon  his  contract 
by  the  courts.  Thus,  if  the  objection  arising 
under  the  doctrine  of  " freedom  of  contract"  is 
effective  for  the  destruction  of  this  statute,  the 
employee's  freedom  of  contract  is  made  to  accom- 
plish the  creation  of  an  obligation  contrary  to  his 
interests  and  against  his  wishes.  Thus  in  the 
nameof  "freedom  of  contract"  he  is  compelled  to 
work  under  the  terms  of  a  contract  which  he  ex- 
pressly repudiates.  To  insist  upon  "freedom  of 
contract,"  to  prevent  relief  from  the  consequences 
of  a  contract  never  made  by  the  railroad  men,  and 
existing  only  by  a  legal  fiction,  would  be  the  con- 
summation of  a  great  legal  wrong. 

In  the  report  of  the  English  Parliamentary 
Committee,  which  reported  the  original  Em- 
ployers' Liability  Act  of  1880,  Mr.  Lowe,  the 
Chairman  of  the  Committee,  says:  "The  contract 
which  the  judges  have  assumed  to  be  entered  into 
by  every  operative,  involving,  as  it  does,  the  ces- 
sion of  most  important  rights  without  any  con- 
sideration, is  utterly  unknown  by  the  person  to 


TO   INTERSTATE  EMPLOYEES  177 

be  bound  by  it,  and  was,  to  its  fullest  extent,  un- 
known to  the  judges  themselves."  Mr.  Lowe 
characterizes  the  insertion  of  the  assumption  of 
risk  into  the  contract  of  employment  as  "an  ex- 
traordinary stretch  of  judicial  legislation,"  and 
he  says  that  it  is  to  be  regarded  "with  the  utmost 
jealousy  and  dissatisfaction,"  as  it  alters  the 
common  law  "not  in  any  abstruse  or  remote  point, 
but  in  a  matter  which  most  nearly  concerns  the 
interests  of  hundreds  of  thousands  of  Her  Ma- 
jesty's subjects."  In  the  same  parliamentary  re- 
port Justice  Brett  is  quoted:  "I  say  now  that  the 
law  is  that  you  cannot  properly  import  any  con- 
dition or  stipulation  into  a  contract  except  one 
which  in  the  minds  of  all  reasonable  men  must 
have  been  in  the  contemplation  and  intention  of 
both  parties  to  the  contract  at  the  time  it  was 
made."  And  yet  it  is  soberly  suggested  that 
"freedom  of  contract"  is  a  reasonable  ground  upon 
which  to  base  the  perpetuation  of  a  contract  never 
made  by  the  workman  and  existing  only  by  the 
requirement  of  the  judges.  It  cannot  be  that  the 
policy  adopted  by  the  courts  to  compel  those  who 
embark  in  perilous  work  to  assume  danger  of 
death  or  injury  from  the  fault  of  others  can  be 
forced  perpetually  upon  the  workmen  against 
their  wishes  and  against  the  legislation  of  Con- 
gress, intended  to  relieve  them  from  its  injustice, 
upon  any  ground  which  can  properly  be  charac- 


178  LIABILITY  OF  RAILROADS 

terized  as  freedom   or   liberty   of  any   kind   or 
name. 

When  a  railroad  man  engages  to  work  as  engi- 
neer or  trainman,  he  is  selling  his  services  and  no 
more.  The  company  is  buying  his  services  and 
no  more,  but  the  common  law  has  artificially 
affixed  a  condition  to  the  contract  of  employment 
that  when  the  employee  sells  his  services  he  must 
risk  life  and  limb  if  the  manifest  perils  of  the 
employment  require  it.  By  the  contract  of  the 
parties,  nothing  passes  from  the  employee  but  his 
services.  The  contract  judicially  superimposed 
upon  the  parties  requires  by  implication  the  pass- 
ing to  the  employer  of  the  right  to  conduct  his 
business  in  a  manner  manifestly  perilous  to  the 
employee,  and  without  requital  to  kill  or  injure 
the  employee  by  means  of  the  manifestly  perilous 
manner  in  which  the  business  is  conducted.  It 
may  be  a  harsh  method  of  stating  the  doctrine 
as  laid  down  by  the  courts  at  common  law  to  say 
that  when  the  workman  undertakes  to  sell  his 
services  the  court  compels  him  to  place  his  life  or 
limb  at  the  peril  of  the  master's  business,  or  to 
say  that  the  sale  of  personal  services  in  a  contract 
of  employment  involves  the  sale  of  the  life  or 
limb  of  the  employee  if  the  manifest  perils  of  the 
master's  business  require  it.  But  that  is  a  much 
more  correct  method  of  stating  the  effect  of  the 
judicial  contract  than  the  expression  the  common 


TO   INTERSTATE   EMPLOYEES  179 

law  used,  that  the  employee  voluntarily  assumes 
the  risk  of  the  manifest  perils  of  the  business.  And 
it  is  to  be  remembered  that  this  artificial  term  of 
the  contract  judicially  affixed  thereto  is  one  from 
which  the  servant  can  in  no  manner  escape. 
Courts  say  he  may  leave  the  particular  employ- 
ment if  dangerous,  but  the  same  condition  attaches 
in  any  employment  in  which  he  may  engage. 
That  the  doctrine  commonly  called  assumption  of 
risk  exists  entirely  by  legal  deduction  and  is  at- 
tached to  the  contract  of  employment  merely  by 
artificial  construction,  attention  is  called  to  the 
statement  of  Lord  Benholm  in  Gregory  v.  Hill, 
1869,  8th  Sc.  Sess.  Cas.,  3d  Series,  p.  282:  "I  am 
free  to  admit  that  I  think  the  explanation  given 
of  this  limitation  is  a  very  unsatisfactory  and  ar- 
tificial one  —  a  supposed  contract  between  master 
and  servant,  that  the  latter  should  not  claim 
damages  in  such  a  case.  Can  there  be  anything 
more  artificial?" 

Hawkins,  J.,  in  Thrussell  v.  Handy  side,  L.  R. 
20  Q.  B.  D.  359,  364,  said:  "If  the  plaintiff  could 
have  gone  away  from  the  dangerous  place  with- 
out incurring  the  risk  of  losing  his  means  of 
livelihood,  the  case  might  have  been  different; 
but  he  was  obliged  to  be  there.  His  poverty, 
not  his  will,  consented  to  incurring  danger." 

Cockburn,  C.  J.,  in  Woodley  v.  Metropolitan 
District  R.  R.  Co.  (1877),  L.  R.  2  Exch.  Div.  384, 


180  LIABILITY   OF   RAILROADS 

at  p.  389,  said:  "Morally  speaking,  those  who 
employ  men  on  dangerous  work  without  doing 
all  in  their  power  to  obviate  the  danger  are  highly 
reprehensible.  .  .  .  The  workman  who  depends  on 
his  employment  for  the  bread  of  himself  and  his 
family  is  thus  tempted  to  incur  risks  to  which,  as  a 
matter  of  humanity,  he  ought  not  to  be  exposed." 
For  a  court  to  insist  upon  the  workman's 
"freedom  of  contract, "  to  force  upon  him  a  judi- 
cial contract  which  he  repudiates,  is  illogical 
and  manifestly  unjust.  It  does  not  tend  to 
promote  popular  respect  for  the  courts  to  assign 
"freedom  of  contract"  as  a  ground  for  the  judi- 
cial compulsion  of  a  contract  never  made  by 
the  parties  and  distinctly  repudiated  by  one 
of  the  parties  thereto.  All  intelligent  men  know 
that  the  "freedom  of  contract"  here  granted 
by  this  decision,  to  quote  the  words  of  a 
recent  writer,  "gives  them  [the  workers]  their 
precise  opposites  as  ironic  forms  of  personal  lib- 
erty." As  the  writer  just  above  quoted,  George 
W.  Alger,  in  "Moral  Overstrain,"  1906,  at  page 
170,  says:  "The  enormously  increasing  number  of 
railroad  accidents  in  this  country,  compared  with 
other  countries,  has  attracted  much  attention. 
The  great  number  of  deaths  thus  occasioned  are 
of  railway  employees;  but  there  are  enough  pas- 
sengers killed  every  year  to  make  the  legal  status 
of  the  railway  employee,  as  regards  his  right  to 


TO   INTERSTATE   EMPLOYEES  181 

safety  while  at  work,  important  to  the  public,  as 
well  as  to  him  and  his  fellows.  The  safety  of  the 
railroad  employee  is  too  closely  bound  to  that  of 
the  passenger  to  be  separated  in  the  eyes  of  the 
law.  When  the  collision  comes,  the  engineer  may 
die  first,  but  the  passengers  are  there  in  the  cars 
right  behind  him. 

"These  two  illustrations  might  be  multiplied, 
but  further  examples  would  add  little.  The 
workman  does  not  want  the  vain  liberty,  so  often 
declared  to  him  by  the  courts,  of  throwing  up  his 
job  and  looking  for  another.  He  does  not  take 
kindly  to  the  judicial  affirmations  to  him  of  the 
right  to  be  maimed  without  redress,  or  to  be  killed, 
by  his  employer's  indifference  to  his  safety.  His 
grievance  is  not  directly  with  the  courts  and  law. 
The  workman  knows  little  about  the  law,  and 
most  of  what  he  understands  he  does  not  like. 
He  objects  to  the  economics  on  which  these  kill- 
ing decrees  are  rendered  against  him.  He  does 
not  call  it  economics,  but  at  the  bottom  the  real 
trouble  from  the  workman's  point  of  view  is  the 
blindness  of  the  courts,  which  do  not  seem  to 
notice  or  to  understand  the  social  and  economic 
conditions  under  which  he  has  to  work.  For  the 
law  still  embodies  in  these  decisions  an  outworn 
philosophy,  the  old  laissez  faire  theory  of  extreme 
individualism.  This  theory  resolutely  closed  its 
eyes  to  all  common,  obvious,  social,  and  economic 


182  LIABILITY  OF  RAILROADS 

distinctions  between  men,  considered  either  as 
individuals  or  as  classes,  and  with  self-imposed 
blindness  imagined  rather  than  saw  the  servant 
and  his  master  acting  upon  a  plane  of  absolute 
and  ideal  equality  in  all  matters  touching  their 
contractual  relation;  both  were  free  and  equal, 
and  the  proper  function  of  government  was  to 
let  them  alone.  If  the  servant  was  dissatisfied 
with  the  conditions  of  his  employment;  if  the 
dangers  created,  not  merely  by  the  necessities  of 
the  work,  but  by  the  master's  indifference  to  the 
safety  of  his  men,  were  in  the  eyes  of  the  latter 
too  great  to  be  endured  with  prudence,  then, 
being  under  this  theory  a  free  'agent'  to  go  or 
stay,  if  he  chose  to  stay,  he  must  take  the  possible 
consequences  of  personal  injury  or  death. 

"To  the  workingman  of  to-day  this  theory 
embodies  the  liberty  of  barbarism,  —  the  '  free- 
dom' of  the  Stone  Age.  This  freedom  is  to  him 
not  liberty,  but  injustice." 

The  suggestion  of  " freedom  of  contract"  for 
the  railroad  men  in  such  a  connection  is  as  perilous 
to  public  interests  and  public  policy  as  it  is  un- 
fair, unreasonable,  and  unjust  in  its  consequence 
to  the  men  involved. 

"Freedom  of  contract"  is  the  basis  of  the  denial 
of  the  right  of  the  legislature  to  give  relief.  Courts 
cannot  give  the  relief,  because  they  are  bound  by 
the  doctrine  of  stare  decisis. 


TO   INTERSTATE  EMPLOYEES  183 

Therefore  the  workmen  are  notified  that 
no  relief  is  open  to  them  except  by  their  own 
initiative. 

The  workmen  are  ironically  told  that  they  are 
perfectly  free,  as  superior  men,  to  obtain  a  con- 
tract from  their  employer  which  no  employer  will 
grant,  and  which  no  employer  in  all  economic  his- 
tory ever  granted. 

The  workmen  are  told  by  the  courts  that  they 
have  "freedom  of  contract"  to  induce  the  em- 
ployer to  voluntarily  assume  the  burden  of  indus- 
trial accidents. 

No  sane  man  can  expect  that  employees  will 
find  any  remedial  results  from  this  "freedom  of 
contract"  if  the  employee  acts  individually. 

If  the  million  and  a  half  railroad  men  are  to 
continue  employed  as  railroad  men,  this  doctrine 
closes  every  door  to  compensation  for  injury. 

But  if  they  act  collectively  and  refuse  to  work 
until  the  objectionable  term  is  removed  from 
contracts  of  employment  by  express  and  formal 
renunciation  by  the  employer  of  the  provision 
the  courts  have  attached  to  such  contracts,  then 
we  have  the  exercise  of  the  "freedom  of  contract" 
by  the  employee. 

This  means  a  strike,  and  can  mean  nothing 
else. 

Assent  to  this  doctrine  by  the  courts  would 
block  every  other  avenue  of  relief. 


184  LIABILITY  OF  RAILROADS 

§  49.  This  Doctrine  has  not  Impaired  Legis- 
lation Forbidding  Contracts  to  Avoid 
the  Consequences  of  Negligence  in 
Handling  Freight. 
The  doctrine  of  liberty  of  contract  has  not 
been  applicable  to  impair  legislation  forbidding 
carriers  to  contract  to  relieve  themselves  from  the 
consequence  of  negligence  of  them  or  their  agents 
where  satisfaction  for  damage  or  delay  to  shipments 
of  freight  was  the  subject-matter  of  the  contract  and 
therefore  it  is  not  reasonable  to  suppose  that  it  can 
be  a  barrier  to  legislation,  the  subject-matter  of 
which  is  satisfaction  for  fatal  or  other  injury  to 
men. —  From  the  cases  of  New  York  Central 
R.  Co.  v.  Lockwood,  17  Wall.  357,  and  Baltimore 
&  Ohio  S.  W.  R.  Co.  v.  Voight,  176  U.  S. 
498,  20  Sup.  Ct.  Rep.  385,  and  cases  cited, 
it  is  clear  that  carriers  by  railroad  are  not  per- 
mitted to  relieve  themselves  from  liability  for 
negligence  of  their  servants  or  agents  resulting 
in  loss  or  damage  to  shippers  or  injuries  to  pas- 
sengers. This  rule  has  been  judicially  established 
in  its  application  to  shippers  and  passengers. 
Can  it  be  possible  that  there  is  not  legislative 
power  to  make  similar  limitation  upon  the  right 
to  contract  in  cases  which  involve  injuries  to  men 
employed  by  railroads?  The  whole  subject  seems 
to  be  disposed  of  by  Mr.  Justice  Peckham  in  the 
case  of  the  Addyston  Pipe  &  Steel  Co.  v.  United 


TO   INTERSTATE   EMPLOYEES  185 

States,  175  U.  S.  211,  20  Sup.  Ct.  Rep.  96,  for 
reasons  which  seem  to  be  satisfactory  and  con- 
clusive, when  he  says:  " Regulation  to  any  sub- 
stantial extent,  of  such  a  subject  by  any  other 
power  than  that  of  Congress,  after  Congress  has 
itself  acted  thereon,  even  though  such  regulation 
is  effected  by  means  of  private  contracts  between 
individuals  or  corporations,  is  illegal,  and  we  are 
unaware  of  any  reason  why  it  is  not  as  objection- 
able when  attempted  by  individuals  as  by  the 
State  itself.  In  both  cases  it  is  an  attempt  to 
regulate  a  subject  which,  for  the  purpose  of  regu- 
lation, has  been  .  .  .  exclusively  granted  to  Con- 
gress, and  it  is  essential  to  the  proper  execution 
of  that  power  that  Congress  should  have  juris- 
diction as  much  in  the  one  case  as  in  the  other.' ' 

§  50.  This  Doctrine  cannot  Impair  an  Ex- 
press Legislative  Power. 
Where  express  power  exists  over  any  subject- 
matter,  the  exercise  of  legislative  power  upon  that 
subject  is  not  impaired  by  the  freedom  of  contract  of 
the  individual.  —  If  legislative  power  otherwise  ex- 
ists over  the  subject-matter  of  legislation,  there  is 
no  constitutional  " liberty  of  contract"  standing 
in  the  way  of  its  exercise.  If  legislative  power 
does  not  exist  over  the  subject-matter,  legislation 
is  invalid  without  the  invocation  of  a  constitutional 
"liberty  of  contract."     So  validity  of  legislation 


186  LIABILITY   OF   RAILROADS 

in  no  manner  depends  upon  liberty  of  contract. 
Any  statute  otherwise  valid  is  not  void  because 
it  impairs  ''liberty  of  contract."  Cases  in  which 
this  right  of  "liberty  of  contract"  have  been  dis- 
cussed were  cases  not  supported  otherwise  by 
valid  legislative  power.  For  example,  in  Adair  v. 
United  States,  208  U.  S.  161,  28  Sup.  Ct.  Rep.  277, 
the  court  held  that  there  was  "no  such  connec- 
tion between  interstate  commerce  and  membership 
in  a  labor  organization  as  to  authorize  Congress 
to  make  it  a  crime  against  the  United  States  for 
an  agent  of  an  interstate  carrier  to  discharge  an 
employee  because  of  such  membership  on  his 
part."  Having  thus  determined  that  the  legisla- 
tion under  discussion  in  the  Adair  Case  was  not 
a  valid  exercise  of  power  under  the  commerce 
clause,  there  seems  to  have  been  little  relevancy 
in  the  discussion  indulged  in  upon  the  question 
of  "liberty  of  contract."  If  the  Act  was  not  a 
regulation  of  commerce,  it  was  beyond  the  power 
of  Congress. 

Also,  in  the  case  of  Lochner  v.  New  York,  198 
U.  S.  45,  25  Sup.  Ct.  Rep.  539,  the  legislation  then 
before  the  court  fixing  the  hours  of  labor  for 
bakers  in  New  York  was  declared  to  be  uncon- 
stitutional because  it  was  not  a  valid  health 
regulation  and  had  no  other  basis  in  any  rec- 
ognized power  of  government.  It  would  seem, 
therefore,  that  no   invocation   of   the  doctrine  of 


TO   INTERSTATE   EMPLOYEES  187 

"liberty  of  contract"  was  essential  to  the  decision 
of  the  case,  and  that  health,  safety,  commerce,  and 
revenue  laws,  and  statutes  of  frauds  are  valid 
without  reference  to  "liberty  of  contract." 

Valid  regulations  of  commerce  are  not  af- 
fected by  this  doctrine.  United  States  v.  Joint 
Traffic  Association,  171  U.  S.  505,  573,  19  Sup. 
Ct.  Rep.  25,  Addyston  Pipe  &  Steel  Co.  v.  United 
States,  175  U.  S.  211,  228,  229,  20  Sup.  Ct.  Rep. 
96;  New  York,  N.  H.  &  H.  R.  Co.  v.  Interstate 
Commerce  Commission,  200  U.  S.  361,  26  Sup. 
Ct.  Rep.  272;  Armour  Packing  Co.  v.  United 
States,  209  U.  S.  56,  28  Sup.  Ct.  Rep.  428.  See 
also  article  by  Richard  Olney,  42nd  American 
Law  Review,  161. 

In  the  case  of  Addyston  Pipe  &  Steel  Co.  v. 
United  States,  175  U.  S.  211,  20  Sup.  Ct.  Rep. 
96,  the  Court  unanimously  said:  "But  it  has 
never  been,  and  in  our  opinion  ought  not  to 
be,  held  that  the  word  [liberty]  included  the 
right  of  an  individual  to  enter  into  private  con- 
tracts upon  all  subjects,  no  matter  what  their 
nature,  and  wholly  irrespective  (among  other 
things)  of  the  fact  that  they  would,  if  performed, 
result  in  the  regulation  of  interstate  commerce 
and  in  the  violation  of  an  Act  of  Congress  upon 
that  subject.  The  provision  in  the  Constitution 
does  not,  as  we  believe,  exclude  Congress  from 
legislating  with  regard  to  contracts  of  the  above 


188  LIABILITY   OF   RAILROADS 

nature  while  in  the  exercise  of  its  constitutional 
right  to  regulate  commerce  among  the  States. 
On  the  contrary,  we  think  the  provision  regard- 
ing the  liberty  of  the  citizen  is,  to  some  extent, 
limited  by  the  commerce  clause  of  the  Constitu- 
tion, and  that  the  power  of  Congress  to  regulate 
interstate  commerce  comprises  the  right  to  enact 
a  law  prohibiting  the  citizen  from  entering  into 
those  private  contracts  which  directly  and  sub- 
stantially, and  not  merely  indirectly,  remotely, 
incidentally,  and  collaterally,  regulate  to  a  greater 
or  less  degree  commerce  among  the  States." 

In  Patterson  v.  Kentucky,  97  U.  S.  501,  the  court 
said:  "It  [the  court]  has,  nevertheless,  with 
marked  distinctness  and  uniformity,  recognized 
the  necessity  growing  out  of  the  fundamental 
conditions  of  civil  society,  of  upholding  state 
police  regulations  which  were  enacted  in  good 
faith,  and  had  appropriate  and  direct  connection 
with  that  protection  to  life,  health,  and  property 
which  each  State  owes  to  her  citizens." 

Legislation  within  the  limits  of  the  powers  of 
government  to  protect  the  safety,  health,  peace, 
good  order,  and  morals  of  the  community,  and 
which  is  in  each  case  a  legitimate  and  normal  ex- 
ercise of  the  power  to  protect  the  community  in 
such  respects,  is  not  at  all  vitiated  by  any  pri- 
vate right  of  contract.  Crowley  v.  Christensen,  137 
U.  S.  86,  11  Sup.  Ct.  Rep.  13;   Patterson  v.  Ken- 


TO   INTERSTATE   EMPLOYEES  189 

tucky,  97  U.  S.  501;  Barbier  v.  Connolly,  113  U.  S. 
27,  5  Sup.  Ct.  Rep.  357;  Holden  v.  Hardy,  169 
U.  S.  366,  18  Sup.  Ct.  Rep.  383;  St.  Louis,  I.  M. 
&  St.  P.  R.  Co.  v.  Paul,  173  U.  S.  404,  19  Sup.  Ct. 
Rep.  419;  Knoxville  Iron  Co.  v.  Harbison,  183 
U.  S.  13,  22  Sup.  Ct.  Rep.  1;  Jacobson  v.  Massa- 
chusetts, 197  U.  S.  11,  25  Sup.  Ct.  Rep.  358.  See 
also,  as  to  validity  of  legislation  under  express 
legislative  power  which  invades  the  private  right 
of  contract,  Union  Pacific  Ry.  Co.  v.  Goodridge, 
149  U.  S.  680,  13  Sup.  Ct.  Rep.  970;  Frisbie  v. 
United  States,  157  U.  S.  160,  15  Sup.  Ct.  Rep.  586. 
That  legislation  may  restrain,  regulate,  and 
control  those  engaged  in  a  particular  occupation, 
in  the  exercise  of  that  occupation,  seems  to  be 
clearly  and  indubitably  established  by  the  majority 
opinion  in  the  Slaughter-House  Cases,  16  Wall., 
at  page  80:  "The  argument  has  not  been  much 
pressed  in  these  cases  that  the  defendant's  charter 
deprives  the  plaintiffs  of  their  property  without 
due  process  of  law,  or  that  it  denies  to  them  the 
equal  protection  of  the  law.  The  first  of  these 
paragraphs  has  been  in  the  Constitution  since 
the  adoption  of  the  Fifth  Amendment,  as  a  re- 
straint upon  the  federal  power.  It  is  also  to  be 
found  in  some  form  of  expression  in  the  constitu- 
tions of  nearly  all  the  States,  as  a  restraint  upon 
the  power  of  the  States.  This  law,  then,  has 
practically  been  the  same  as  it  now  is  during  the 


190  LIABILITY  OF   RAILROADS 

existence  of  the  government,  except  so  far  as  the 
present  amendment  may  place  the  restraining 
power  over  the  States  in  this  matter  in  the  hands 
of  the  Federal  Government." 

This  strong  statement  of  the  majority  of  the 
court  is  emphasized  by  the  fact  that  the  minority 
opinions  in  the  same  case  urged  the  doctrine  now 
sought  to  be  engrafted  upon  our  Constitution. 
Mr.  Justice  Field,  page  106,  cited  from  a  Circuit 
Court  decision,  Live  Stock  Association  v.  Crescent 
City  Co.,  1  Abbott's  U.  S.  Rep.  399:  "There  is  no 
more  sacred  right  of  citizenship  than  the  right 
to  pursue  unmolested  a  lawful  employment  in  a 
lawful  manner."  Mr.  Justice  Bradley,  page  116, 
said:  "A  calling,  when  chosen,  is  a  man's  property 
and  right."  Mr.  Justice  Swayne,  page  127,  said: 
"Labor  is  property,  and  as  such  merits  protection. 
The  right  to  make  it  available  is  next  in  importance 
to  the  rights  to  life  and  liberty." 

It  may  be  remarked  in  passing,  as  bearing 
upon  the  validity  of  the  Employers'  Liability  Act, 
which  confers  a  right  to  his  life  upon  the  railroad 
employee,  that  the  remark  just  quoted  from  Mr. 
Justice  Swayne  follows  his  declaration  that  "life 
is  the  gift  of  God,  and  the  right  to  preserve  it  is 
the  most  sacred  of  the  rights  of  man." 

The  right  of  a  citizen  to  contract,  or  his  liberty 
and  freedom  to  contract,  is  not  superior  to  the 
rights   and   powers  of  a   State.     And  yet  even 


TO  INTERSTATE  EMPLOYEES       191 

though  legislative  power  over  a  subject-matter 
is  within  the  reserve  powers  of  the  State  or  within 
the  police  power  of  the  State,  that  does  not  im- 
pair the  paramount  right  of  Congress  to  act  upon 
that  subject-matter  in  the  execution  of  any  of 
the  powers  delegated  to  Congress  by  the  Con- 
stitution of  the  United  States.  As  was  said  by 
Chief  Justice  Marshall  in  Gibbons  v.  Ogden, 
9  Wheat.  1,  210,  211:  "The  nullity  of  any  Act 
inconsistent  with  the  Constitution  is  produced 
by  the  declaration  that  the  Constitution  is  the 
supreme  law.  The  appropriate  application  of 
that  part  of  the  clause  which  confers  the  same 
supremacy  on  laws  and  treaties  is  to  such  acts 
of  the  state  legislatures  as  do  not  transcend 
their  powers,  but,  though  enacted  in  the  execu- 
tion of  acknowledged  state  powers,  interfere  with 
or  are  contrary  to  the  laws  of  Congress  made  in 
pursuance  of  the  Constitution,  or  some  treaty 
made  under  the  authority  of  the  United  States. 
In  every  such  case  the  Act  of  Congress,  or  the 
treaty,  is  supreme;  and  the  law  of  the  State, 
though  enacted  in  the  exercise  of  powers  not  con- 
troverted, must  yield  to  it." 

Like  the  rights  of  States,  the  rights  of  citizens 
are  controlled,  impaired,  and  governed  by  legis- 
lation of  Congress  when  such  legislation  is  within 
the  express  or  implied  powers  conferred  by  the 
Constitution. 


192  LIABILITY   OF   RAILROADS 

The  right  to  contract,  like  the  right  to  con- 
struct lighthouses  on  one's  own  land,  Gibbons  v. 
Ogden,  9  Wheat.  1,  208,  may  be  restrained  if  in 
conflict  with  the  due  and  proper  regulation  of 
commerce. 

In  a  recent  case  decided  by  the  Court  of  Ap- 
peals of  the  District  of  Columbia,  McNamara  v. 
Washington  Terminal  Company,  35  App.  D.  C. 
230,  involving  the  constitutionality  of  the  federal 
Employers'  Liability  Act,  the  court  made  a  care- 
ful analysis  and  review  of  the  objection  made  to 
the  statute  that  it  invades  the  "  freedom  of  con- 
tract." Upon  this  subject  the  Court  said:  "That 
the  right  of  contract  is  subject  to  many  limita- 
tions imposed  in  the  interests  of  the  general  public, 
or,  to  preserve  the  public  health,  morals,  or  safety, 
is  of  course  not  denied.  The  decisions  of  the  Su- 
preme Court  of  the  United  States  are  replete  with 
declarations  to  that  effect.  In  Munn  v.  People  of 
Illinois,  94  U.  S.  113,  a  statute  fixing  the  maxi- 
mum charges  for  the  storage  of  grain  and  prohib- 
iting charges  for  larger  amounts  was  sustained. 
A  California  statute  making  it  unlawful  for  em- 
ployees -to  work  in  laundries  between  the  hours  of 
10  p.  m.  and  6  a.  m.  met  with  the  approval  of  the 
court  in  Soon  Hing  v.  Crowley,  113  U.  S.  703, 
5  Sup.  Ct.  Rep.  730.  In  Frisbie  v.  United  States, 
157  U.  S.  1G0,  15  Sup.  Ct.  Rep.  586,  an  Act  of 
Congress  limiting  the  fees  of  attorneys  prosecut- 


TO   INTERSTATE   EMPLOYEES  193 

ing  pension  claims  was  held  to  be  within  the  police 
power.  The  Court  said:  'It  is  within  the  un- 
doubted power  of  government  to  restrain  some 
individuals  from  all  contracts,  as  well  as  all  in- 
dividuals from  some  contracts.  It  may  deny  to 
all  the  right  to  contract  for  the  purchase  or  sale 
of  lottery  tickets;  to  the  minor  the  right  to  assume 
any  obligation,  except  for  the  necessaries  of  exist- 
ence; to  the  common  carrier  the  power  to  make  any 
contract  releasing  himself  from  negligence,  and, 
indeed,  may  restrain  all  engaged  in  any  employ- 
ment from  any  contract  in  the  course  of  that  em- 
ployment which  is  against  public  policy.'  H olden 
v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  Rep.  383, 
involved  a  statute  of  Utah  regulating  the  hours 
of  labor  in  mines.  Speaking  of  the  right  of  con- 
tract, the  Court  said :  '  This  right  of  contract,  how- 
ever, is  itself  subject  to  certain  limitations  which 
the  State  may  lawfully  impose  in  the  exercise  of 
its  police  powers.  While  this  power  is  inherent  in 
all  governments,  it  has  doubtless  been  greatly  ex- 
panded in  its  application  during  the  past  century, 
owing  to  an  enormous  increase  in  the  number  of 
occupations  which  are  dangerous  or  so  far  detri- 
mental to  the  health  of  employees  as  to  demand 
special  precautions  for  their  well-being  and  protec- 
tion or  the  safety  of  adjacent  property.'  In  deal- 
ing with  the  capacity  of  the  parties  to  contract, 
the  Court  observed : '  But  the  fact  that  both  parties 


194  LIABILITY   OF   RAILROADS 

are  of  full  age  and  competent  to  contract  does 
not  necessarily  deprive  the  State  of  the  power  to 
interfere,  where  the  parties  do  not  stand  upon  an 
equality  or  where  the  public  health  demands  that 
one  party  to  the  contract  shall  be  protected 
against  himself.  "The  State  still  retains  an  in- 
terest in  his  welfare,  however  reckless  he  may  be. 
The  whole  is  no  greater  than  the  sum  of  all  the 
parts,  and  when  the  individual  health,  safety, 
and  welfare  are  sacrificed  or  neglected,  the  State 
must  suffer." '  After  a  full  review  of  the  adjudged 
cases,  the  Court  held  the  statute  to  be  a  valid 
exercise  of  the  police  power  of  the  State.  An  Act 
of  the  legislature  of  the  State  of  Tennessee  re- 
quiring the  redemption  in  cash  of  store  orders  or 
other  evidences  of  indebtedness  issued  by  em- 
ployers in  lieu  of  wages  was  held,  in  Knoxville 
Iron  Company  v.  Harbison,  183  U.  S.  13,  22  Sup. 
Ct.  Rep.  1,  not  to  be  in  conflict  with  any  provi- 
sions of  the  Constitution  of  the  United  States  re- 
lating to  contracts.  A  statute  of  the  United  States 
prohibiting  the  payment  of  seamen's  wages  in 
advance  was  held  to  be  within  the  power  of  Con- 
gress in  Patterson  v.  Bark  Eudora,  190  U.  S.  169, 
23  Sup.  Ct.  Rep.  821.  Jacobson  v.  Massachusetts, 
197  U.  S.  11,  25  Sup.  Ct.  Rep.  358,  involved  a  law 
of  that  Commonwealth  making  vaccination  com- 
pulsory in  the  discretion  of  a  board  of  health  in  a' 
city  or  town.     The  Court,  in  sustaining  the  law, 


TO   INTERSTATE   EMPLOYEES  195 

said:  'The  liberty  secured  by  the  Constitution  of 
the  United  States  to  every  person  within  its  juris- 
diction does  not  import  an  absolute  right  in  each 
person  to  be  at  all  times  and  in  all  circumstances 
wholly  freed  from  restraint.  There  are  manifold 
restraints  to  which  every  person  is  necessarily 
subject  for  the  common  good.'  The  legislature  of 
Arkansas  enacted  a  law  making  it  unlawful  to 
screen  coal  before  weighing  it  for  payment  of 
miners'  wages.  This  law  was  sustained  in  McLean 
v.  Arkansas,  211  U.  S.  539,  29  Sup.  Ct.  Rep.  206. 
The  Court  said:  'The  mere  fact  that  the  court 
may  differ  with  the  legislature  in  its  views  of 
public  policy,  or  that  judges  may  hold  views  in- 
consistent with  the  propriety  of  the  legislation  in 
question,  affords  no  ground  for  judicial  interfer- 
ence, unless  the  act  in  question  is  unmistakably 
and  palpably  in  excess  of  legislative  power.'" 

The  latest  expression  of  the  Supreme  Court 
upon  this  subject  is  the  unanimous  opinion  de- 
livered by  Mr.  Justice  Hughes  in  the  case  of 
Chicago,  Burlington  &  Quincy  Railroad  Co.  v. 
McGuire,  31  Sup.  Ct.  Rep.  259.  In  this  case  the 
Court  said  that  the  right  to  make  contracts  is 
subject  to  the  exercise  of  the  powers  granted  to 
Congress  for  the  suitable  conduct  of  matters  of 
national  concern,  as,  for  example,  the  regulation 
of  commerce  with  foreign  nations  and  among  the 
several   States.     Addyston   Pipe   &   Steel   Co.  v. 


196  LIABILITY   OF  RAILROADS 

United  States,  175  U.  S.  228,  231,  20  Sup.  Ct.  Rep. 
96;  Patterson  v.  Bark  Eudora,  190  U.  S.  174,  176, 

23  Sup.  Ct.  Rep.  821;  Atlantic  Coast  Line  Co. 
v.  Riverside  Mills,  219  U.  S.  186,  31  Sup.  Ct.  Rep. 
164;  Louisville  &  Nashville  R.  Co.  v.  Mottley, 
31  Sup.  Ct.  Rep.  265. 

It  is  subject  also,  in  the  field  of  state  action,  to 
the  essential  authority  of  government  to  main- 
tain peace  and  security,  and  to  enact  laws  for 
the  promotion  of  the  health,  safety,  morals,  and 
welfare  of  those  subject  to  its  jurisdiction.  This 
limitation  has  had  abundant  illustration  in  a 
variety  of  circumstances.  Thus,  in  addition  to 
upholding  the  power  of  the  State  to  require 
reasonable  maximum  charges  for  public  service, 
Chicago,  Burlington  &  Quincy  R.  Co.  v.  Iowa, 
94  U.  S.  155;  Railroad  Commission  Cases,  116 
U.  S.  307,  6  Sup.  Ct.  Rep.  334,  348,  349,  388,  391, 
1191;  Wilcox  v.  Consolidated  Gas  Co.,  212  U.  S.  19, 
29  Sup.  Ct.  Rep.  192;  and  to  prescribe  the  hours 
of  labor  for  those  employed  by  the  State  or  its 
municipalities,  Atkin  v.  Kansas,  191  U.  S.  207, 

24  Sup.  Ct.  Rep.  124;  the  Supreme  Court  has 
sustained  the  validity  of  state  legislation  pro- 
hibiting the  manufacture  and  sale  of  intoxicating 
liquors  within  a  State,  Mugler  v.  Kansas,  123 
U.  S.  623,  8  Sup.  Ct.  Rep.  273;  Crowley  v.  Chris- 
tensen,  137  U.  S.  86,  11  Sup.  Ct.  Rep.  13;  pro- 
hibiting  the   sale   of   cigarettes   without   license, 


TO   INTERSTATE  EMPLOYEES  197 

Gundling  v.  Chicago,  177  U.  S.  183,  20  Sup.  Ct. 
Rep.  633;  prohibiting  contracts  for  options  to 
sell  or  buy  grain  or  other  commodity  at  a  future 
time,  Booth  v.  Illinois,  184  U.  S.  425,  22  Sup. 
Ct.  Rep.  425;  and  prohibiting  the  employment 
of  women  in  laundries  more  than  ten  hours  a  day, 
Muller  v.  Oregon,  208  U.  S.  412,  28  Sup.  Ct.  Rep. 
324. 

The  principle  involved  in  these  decisions  is  that 
where  the  legislative  action  is  arbitrary  and  has 
no  reasonable  relation  to  a  purpose  which  it  is 
competent  for  government  to  effect,  the  legisla- 
ture transcends  the  limits  of  its  power  in  interfering 
with  liberty  of  contract;  but  where  there  is  reason- 
able relation  to  an  object  within  the  governmental 
authority,  the  exercise  of  the  legislative  discretion  is 
not  subject  to  judicial  review.  The  scope  of  judicial 
inquiry  in  deciding  the  question  of  power  is  not 
to  be  confused  with  the  scope  of  legislative  con- 
siderations in  dealing  with  the  matter  of  policy. 
Whether  the  enactment  is  wise  or  unwise,  whether 
it  is  based  on  sound  economic  theory,  whether  it 
is  the  best  means  to  achieve  the  desired  result, 
whether,  in  short,  the  legislative  discretion  within 
its  prescribed  limits  should  be  exercised  in  a  par- 
ticular manner,  are  matters  for  the  judgment  of 
the  legislature,  and  the  earnest  conflict  of  serious 
opinion  does  not  suffice  to  bring  them  within  the 
range  of  judicial  cognizance. 


198  LIABILITY   OF   RAILROADS 

It  would  seem  clear  that  if  an  enactment  had 
no  relation  to  any  subject-matter  properly  within 
legislative  power,  no  invocation  of  any  freedom 
of  contract  was  essential  to  its  judicial  overthrow. 

The  declaration  by  the  Supreme  Court  in  the 
McGuire  Case,  31  Sup.  Ct.  Rep.  259,  that  "  where 
there  is  reasonable  relation  to  an  object  within 
the  governmental  authority,  the  exercise  of  the 
legislative  discretion  is  not  subject  to  judicial 
review,"  seems  logically  to  point  to  this  conclusion, 
that  if  a  law  is  valid  and  based  upon  some  legis- 
lative power  thereto  enabling,  "liberty  of  contract " 
is  immaterial. 

If  it  is  void  for  lack  of  legislative  power  over 
the  subject-matter  of  the  enactment,  freedom  of 
contract  is  unavailing. 

Hence  it  follows  that  liberty  of  contract  can  in 
no  manner  afford  a  test  in  and  of  itself  of  the  va- 
lidity of  legislation.  Such  validity  in  no  manner 
depends  upon  whether  or  not  it  invades  the  liberty 
of  contract. 

The  case  of  Louisville  &  Nashville  R.  Co.  v. 
Mottley,  31  Sup.  Ct.  Rep.  265,  holds  that  an  ex- 
isting contract,  valid  when  made,  may  be  rendered 
null  by  legislation  of  Congress  within  its  power 
under  the  commerce  clause. 

This  seems  to  foreshadow  the  end  of  liberty 
of  contract  as  an  objection  to  the  validity  of 
legislation. 


TO   INTERSTATE   EMPLOYEES  199 

§  51.     This  Doctrine  Imports  a  Dangerously 

Loose  Construction  of  the  Constitution. 

Speaking  in  general  terms  of  the  doctrine  of 
"liberty  of  contract,"  it  may  not  be  out  of  place 
to  say  that  the  school  of  constitutional  construc- 
tion which  would  make  " liberty  of  contract"  a 
constitutional  right  is  by  no  means  a  school  of 
strict  construction  of  the  Constitution.  Nor  is  it 
a  construction  preservative  of  the  Constitution. 
It  does  not  even  serve  the  purpose  of  its  defenders 
to  conserve  property  interests. 

It  is  a  loose  construction,  for  it  adds  to  the 
Constitution  a  meaning  never  intended  by  its 
authors,  a  meaning  not  within  the  natural  inter- 
pretation of  its  provisions,  and  a  meaning  which  a 
majority  of  the  Supreme  Court  in  the  Slaughter- 
House  Cases  expressly  repudiated. 

The  fathers  of  the  Republic  founded  a  govern- 
ment "of  the  people,  for  the  people,  and  by  the 
people."  Through  chosen  representatives  respon- 
sible to  the  people  the  laws  were  to  be  made. 
And  legislative  power  was  not  meant  to  be  sub- 
ordinated to  the  guardianship  of  a  co-ordinate 
department  of  the  Government.  Limits  there  are 
to  the  exercise  of  legislative  power,  but  ,they  are 
expressed  in  the  Constitution  and  are  not  to  be 
judicially  created. 

A  court  to-day  may  give  emphasis  to  the  right  to 
contract .    Another  court  to-morrow  differently  con- 


200  LIABILITY   OF   RAILROADS 

stituted  may  place  the  emphasis  upon  the  right  of 
the  people  to  live,  and  the  right  to  all  the  means 
necessary  to  enjoy  the  right  to  live.  This  would 
open  a  breach  in  the  Constitution  wide  enough 
to  justify  the  most  radical  schemes  of  socialistic 
experiment. 

A  court  to-day  may  enlarge  upon  the  natural 
right,  the  sacred  right,  of  contract,  and  having 
added  to  the  fundamental  charter  of  government 
a  provision  for  the  protection  of  what  the  court 
believes  to  be  a  natural  right  of  man,  what  is  there 
to  prevent  a  future  court  from  adding  to  the  in- 
strument such  rights  as  Tolstoi  asserts  to  be  the 
natural  rights  of  man?  If  the  door  is  opened  to 
the  judicial  protection  of  rights  not  specified  in  the 
Constitution,  then  the  judicial  view  of  the  future 
as  to  the  limits  of  the  natural  rights  of  men  is 
of  more  importance  than  the  words  of  the  Con- 
stitution. 

Thus,  those  courts  which  are  foremost  in  ex- 
pressing their  zeal  for  the  protection  of  property, 
and  which  are  at  the  same  time  most  eager  to  rec- 
ognize a  constitutional  guarantee  for  the  preser- 
vation of  the  right  of  contract,  are  unconsciously 
paving  the  way  for  a  loose  construction  of  the 
Constitution  which  may  be  made  the  basis  for  a 
justification  of  collectivism  in  government.  The 
advocates  of  the  wildest  socialistic  schemes  of 
government  base  their  claims  upon  the  identical 


TO   INTERSTATE   EMPLOYEES  201 

ground  adopted  by  this  modern  school  of  judicial 
thought,  the  natural,  sacred,  and  inalienable 
rights  of  men. 

So,  in  the  interest  of  property  those  courts  are 
unconsciously  opening  a  way  for  constitutionally 
changing  in  the  most  radical  manner  the  rules  of 
law  under  which  such  property  is  at  the  present 
time  enjoyed.  The  logical  conclusions  deducible 
from  their  enunciations  countenance  an  economic 
doctrine  destructive  of  the  very  object  they  are 
seeking  to  preserve. 


202  LIABILITY   OF   RAILROADS 


CHAPTER   XI 

THE    ACT   DOES    NOT  CREATE   A    DISCRIMINA- 
TORY CLASSIFICATION 

§  52.    The  Contention  of  Railroad  Counsel. 

The  Committee  appointed  by  the  Conference 
of  Railroad  counsel  which  convened  in  Atlantic 
City,  N.  J.,  July  13,  14,  and  15,  1908,  in  their 
"Report  on  the  Questions  arising  under  the  Em- 
ployers' Liability  Act,"  says,  page  64:  "  .  .  . 
it  would  seem  to  be  clear  that  the  Act  is  un- 
constitutional because, 

"(1)  It  includes  within  its  provisions  interstate 
employees  of  railroads  alone,  and,  in  conse- 
quence, it  does  not  bring  within  this  class  all 
employees  similarly  situated,  namely, 

"(a)  The  interstate  employees  of  other  inter- 
state carriers,  and, 

"(b)  The  interstate  employees  of  all  other  per- 
sons engaged  in  interstate  commerce. 

"(2)  The  language  of  the  Act  includes  within 
its  terms  not  only  those  railroad  employees  whose 
occupations  are  attended  by  the  hazards  peculiar 
to  railroading,  but  also  all  other  employees  of 
railroads  whose  occupations  are  in  no  wise  at- 
tended with  such  hazards; 


TO   INTERSTATE   EMPLOYEES  203 

"(3)  The  Act  includes  within  its  terms  one 
class  only  of  interstate  employers,  to  wit,  rail- 
roads ;  and  this  without  regard  to  the  hazards  of 
the  employment." 

§  53.  Doctrine  of  Common  Employment  In- 
volves   Same    Classification. 

It  is  objected  that  all  employees  of  railroads 
cannot  be  classified  together.  To  this  it  may  be 
answered  that  for  more  than  half  a  century  the 
railroads  themselves  have  invoked  the  same  clas- 
sification under  the  "  doctrine  of  common  employ- 
ment." Ever  since  the  decision  in  the  case  of 
Farwell  v.  Boston  &  Worcester  R.  Corporation, 
4  Mete.  49,  the  courts  have  held  that  the  same 
common  employment  provided  a  proper  classi- 
fication for  a  denial  of  the  right  of  recovery  in 
case  of  personal  injuries  to  employees. 

Baron  Alderson  in  Hutchinson  v.  York,  N.  and 
B.  R.  Co.,  5  Exch.  343,  stated  that  the  defense 
of  fellow-service  was  applicable  to  any  servant 
"whenever  he  is  acting  in  the  discharge  of  his 
duty  as  the  servant  of  him  who  is  the  common 
master  of  both." 

The  common  law  denied  a  remedy  to  one  in 
the  service  of  the  same  master  without  any 
question  of  the  propinquity  of  danger  in  his  own 
particular  line  of  general  service  for  the  reason 
that  he  was  within  the  general  service  of  his  em- 


204  LIABILITY   OF   RAILROADS 

ployer,  and  so  obliged  to  assume  all  risk  of  injury 
from  the  manifest  perils  of  the  master's  business, 
including  the  risk  of  injury  from  the  negligence 
of  fellow-servants.  It  was  the  peril  of  the  master's 
business  he  was  obliged  to  assume.  His  assump- 
tion of  risk  was  not  limited  to  the  manifest  perils 
of  his  own  particular  line  of  work  for  which  his 
service  was  engaged,  but  it  included  all  perils 
which  were  incident  to  the  master's  business. 

The  master  was  immune  for  injury  to  any  of 
his  servants  caused  by  the  negligence  of  any 
other  of  his  servants  within  the  general  scope  of 
the  master's  business  in  which  both  servants  were 
employed.  For  example,  a  painter  engaged  to 
work  as  an  employee  of  a  railroad,  and  who  was 
engaged  in  painting  a  railroad  building  beside 
the  track,  not  only  assumed  the  risk  of  any  in- 
jury accruing  to  him  which  would  naturally 
arise  from  the  particular  work  in  which  he  was 
engaged,  but  he  also  was  obliged  to  assume  the 
risk  of  injury  from  any  other  branch  of  the  service 
of  the  same  common  master,  the  railroad.  If, 
while  engaged  in  painting,  he  was  injured  by  a 
train  on  his  employer's  railroad  leaving  the  track 
and  overturning  his  ladder,  he  had  no  remedy. 

Thus  a  class  was  judicially  established  to  all  of 
whom  was  denied  the  right  to  recover  for  personal 
injuries  under  circumstances  which  gave  rise  to  an 
action  in  favor  of  all  not  within  the  excluded  class. 


TO   INTERSTATE   EMPLOYEES  205 

This  line  of  classification  was  clearly  pointed  out 
by  Justice  Field  in  Chicago,  Milwaukee  &  St.  Paul 
Ry.  Co.  v.  Ross,  112  U.  S.  377,  5  Sup.  Ct.  Rep. 
184,  as  follows:  "The  general  liability  of  a  rail- 
road company  for  injuries,  caused  by  the  negli- 
gence of  its  servants,  to  passengers  and  others  not 
in  its  service,  is  conceded.  It  covers  all  injuries  to 
which  they  do  not  contribute.  But  where  injuries 
befall  servants  in  its  employ,  a  different  principle 
applies."  Those  judicially  classed  together  under 
the  above  rule,  it  is  now  asserted,  cannot  be  legis- 
latively classed  together. 

Now  it  is  urged  that  a  railroad  employee  who  in 
his  particular  occupation  is  not  ordinarily  sub- 
jected to  the  extreme  hazards  of  the  master's  busi- 
ness must,  if  at  any  time  he  be  overtaken  by  any 
of  those  hazards,  be  denied  a  remedy,  and  that  it 
is  unconstitutional  for  the  legislature  to  provide  a 
remedy  in  such  case. 

The  logic  which  included  him  in  the  general 
service  of  a  common  master  to  deny  him  a  remedy 
at  common  law  is  now  reversed  in  an  endeavor 
to  invalidate  an  act  which  follows  the  line  of  in- 
clusion established  and  existing  at  common  law. 

Considering  the  question  of  classification  merely, 
is  it  possible  that  there  can  be  a  valid  judicial 
classification  excluding  all  in  the  class  from  a 
remedy  at  law  and  that  the  same  classification  is 
invalid  in  legislation  permitting  a  remedy? 


206  LIABILITY   OF   RAILROADS 

Can  there  be  a  constitutional  right  requiring 
the  segregation  of  those  not  in  the  hazardous 
occupations  of  railroading  from  those  directly 
connected  with  such  service,  when  a  legislature 
acts,  and  yet  no  constitutional  right  to  the  same 
segregation  when  a  court  rules  that  all  employees 
as  a  class  are  without  a  remedy  merely  because 
they  are  in  the  same  common  employment? 

Employees  who  have  been  judicially  unified 
and  classified  so  as  to  exclude  them  from  remedy 
should  not,  when  legislation  has  granted  a  remedy 
to  them  all  as  the  same  class,  be  thereafter  judi- 
cially segregated  for  the  purpose  of  perpetuating 
the  denial  of  remedy.  Such  alternate  unification 
and  segregation,  always  to  deny  a  remedy  to  em- 
ployees, would  be  a  reproach  to  which  the  courts 
will  not  subject  themselves. 

Those  who  criticise  this  legislation  on  the  ground 
that  its  terms  are  too  inclusive,  as  extending  a 
remedy  to  all  employees  of  interstate  railroads, 
seem  to  forget  that  it  is  the  rule  of  common  em- 
ployment which  is  under  consideration.  Under 
this  rule  of  common  employment  all  employees 
who  were  engaged  in  the  same  general  employ- 
ment and  who  derived  their  authority  and  com- 
pensation from  the  same  source  were  fellow- 
servants. 

All  in  the  same  common  employment  were  by 
i  lie  common  law  denied  the  remedy  given  others 


TO    INTERSTATE   EMPLOYEES  207 

under  like  circumstances.  All  in  the  same  common 
employment  may  by  a  statute  become  entitled 
to  a  remedy  which  the  common  law  denied.  In 
each  case  the  classification  is  identical. 

Now,  the  remedy  may  be  as  comprehensive 
as  the  evil  it  seeks  to  meet,  provided  always  that 
the  legislative  power  is  constitutionally  ample  to 
reach  that  evil.  The  courts,  therefore,  where  leg- 
islative power  over  the  subject-matter  is  other- 
wise admitted  to  exist,  will  scarcely  condemn  as 
unconstitutional  a  legislative  act  based  upon  the 
very  classification  which  they  have  themselves 
judicially  created  and  sustained. 

The  argument  against  the  legislative  classifica- 
tion in  the  Employers'  Liability  Act  of  1908  is  an 
open  attack  upon  the  " equality,"  the  "due  pro- 
cess," and  the  "arbitrary"  character  of  the  rule 
of  common  employment,  established  by  the  courts 
in  conformity  with  the  wishes  of  defendant  rail- 
roads. For  the  rule  of  common  employment  is 
open  to  all  the  constitutional  objections  which  are 
so  strenuously  urged  by  railroad  counsel  against 
the  validity  of  this  legislation.  If  these  particular 
objections  are  tenable,  then  they  apply  to  the 
common  law,  which  must  thereby  fall. 

In  other  words,  if  it  is  an  unconstitutional 
classification,  as  now  urged  by  railroad  counsel, 
to  include  in  a  legislative  Act  all  who  are  in  the 
service  of  the  same  railroad  company,  the  classi- 


208  LIABILITY   OF   RAILROADS 

fication  established  in  the  judicial  rule,  excluding 
from  a  remedy  all  who  serve  the  same  common 
master,  is  unconstitutional. 

If  these  contentions  are  well  grounded,  it  seems 
to  be  logically  inevitable  that  to  deny  to  all  em- 
ployees as  a  class  a  remedy  which  is  given  by  law 
to  all  others  than  employees,  is  "  arbitrary  classi- 
fication," is  "unequal,"  and  is  a  denial  of  "due 
process  of  law." 

§  54.  Equal  Protection  of  the  Law  Clause 
does  not  Restrain  Normal  Exercise  of 
Governmental  Power. 

The  whole  contention  that  the  Act  of  1908 
offends  against  the  equal  protection  of  the  law 
clause  of  the  Constitution  is  conclusively  disposed 
of  by  the  reasoning  in  the  recent  unanimous 
opinion  of  the  Supreme  Court  in  the  case  of 
Louisville  &  Nashville  R.  Co.  v.  Melton,  218  U.  S. 
36,  30  Sup.  Ct.  Rep.  676. 

In  the  opinion  written  by  Mr.  Justice  White 
in  this  case  it  was  said:  "That  the  Fourteenth 
Amendment  was  not  intended  to  and  does  not 
strip  the  States  of  the  power  to  exert  their  lawful 
police  authority  is  settled,  and  requires  no  refer- 
ence to  authorities.  And  it  is  equally  settled  — 
as  we  shall  hereafter  take  occasion  to  show  —  as 
the  essential  result  of  the  elementary  doctrine 
that  the  equal  protection  of  the  law  clause  does 


TO  INTERSTATE   EMPLOYEES  209 

not  restrain  the  normal  exercise  of  governmental 
power,  but  only  abuse  in  the  exertion  of  such 
authority,  therefore  that  clause  is  not  offended 
against  simply  because  as  the  result  of  the  exer- 
cise of  the  power  to  classify  some  inequality  may 
be  occasioned.  That  is  to  say,  as  the  power  to 
classify  is  not  taken  away  by  the  operation  of 
the  equal  protection  of  the  law  clause,  a  wide 
scope  of  legislative  discretion  may  be  exerted  in 
classifying  without  conflicting  with  the  constitu- 
tional prohibition. 

"It  is  beyond  doubt  foreclosed  that  the  Indiana 
statute  does  not  offend  against  the  equal  pro- 
tection clause  of  the  Fourteenth  Amendment, 
because  it  subjects  railroad  employees  to  a  dif- 
ferent rule  as  to  the  doctrine  of  fellow-servant 
from  that  which  prevails  as  to  other  employments 
in  the  State.  Tullis  v.  Lake  Erie  &  W.  R.  Co.,  175 
U.  S.  348,  20  Sup.  Ct.  Rep.  136;  Pittsburg,  C.  C. 
&  St.  L.  Ry.  Co.  v.  Ross,  212  U.  S.  560,  29  Sup.  Ct. 
Rep.  688.  But  while  conceding  this,  the  argu- 
ment is  that  classification  of  railroad  employees 
for  the  purpose  of  the  doctrine  of  fellow-servant 
can  only  consistently  with  equality  and  uni- 
formity embrace  such  employees  when  exposed  to 
dangers  peculiarly  resulting  from  the  operation 
of  a  railroad,  thus  affording  ground  for  distin- 
guishing them  for  the  purpose  of  classification 
from  co-employees  not  subject  to  like  hazards  or 


210  LIABILITY   OF   RAILROADS 

employees  engaged  in  other  occupations.  The  ar- 
gument is  thus  stated:  'Plaintiff  in  error  does 
not  question  the  right  of  the  legislature  of  Indiana 
to  classify  railroads  in  order  to  impose  liability 
upon  them  for  injuries  to  their  employees  incident 
to  railroad  hazards,  but  it  does  insist  that  to 
make  this  a  constitutional  exercise  of  legislative 
power  the  liability  of  the  railroads  must  be  made 
to  depend  upon  the  character  of  the  employment 
and  not  upon  the  character  of  the  employer.' 
Thus  stated,  the  argument  tends  to  confuse  the 
question  for  decision,  since  there  is  no  contention 
that  the  statute  as  construed  bases  any  classifi- 
cation upon  some  supposed  distinction  in  the 
person  of  the  employer.  The  idea  evidently  in- 
tended to  be  expressed  by  the  argument  is,  that 
although,  speaking  in  a  general  sense,  it  be  true 
that  the  hazards  arising  from  the  operation  of 
railroads  are  such  that  a  classification  of  rail- 
road employees  is  justified,  yet  as  in  operating 
railroads  some  employees  are  subject  to  risks 
peculiar  to  such  operation  and  others  to  risks 
which,  however  serious  they  may  be,  are  not  in 
the  proper  sense  risks  arising  from  the  fact  that 
the  employees  are  engaged  in  railroad  work,  the 
legislative  authority  in  classifying  may  not  con- 
found the  two  by  considering  in  a  generic  sense 
the  nature  and  character  of  the  work  performed 
by  railroad  employees  collectively  considered,  but 


TO   INTERSTATE   EMPLOYEES  211 

must  consider  and  separately  provide  for  the 
distinctions  occasioned  by  the  varying  nature 
and  character  of  the  duties  which  railroad  opera- 
tives may  be  called  upon  to  discharge.  In  other 
words,  reduced  to  its  ultimate  analysis  the  con- 
tention comes  to  this,  that  by  the  operation  of 
the  equal  protection  clause  of  the  Fourteenth 
Amendment  the  States  are  prohibited  from  ex- 
erting their  legitimate  police  powers  upon  grounds 
of  the  generic  distinction  obtaining  between  per- 
sons and  things,  however  apparent  such  distinc- 
tion may  be,  but,  on  the  contrary,  must  legislate 
upon  the  basis  of  a  minute  consideration  of  the 
distinctions  which  may  arise  from  accidental 
circumstances  as  to  the  persons  and  things  com- 
ing within  the  general  class  provided  for.  When 
the  proposition  is  thus  accurately  fixed  it  neces- 
sarily results  that  in  effect  it  denies  the  existence 
of  the  power  to  classify,  and  hence  must  rest  upon 
the  assumption  that  the  equal  protection  clause 
of  the  Fourteenth  Amendment  has  a  scope  and 
effect  upon  the  lawful  authority  of  the  States  con- 
trary to  the  doctrine  maintained  by  this  court 
without  deviation.  This  follows  since  the  neces- 
sary consequence  of  the  argument  is  to  virtually 
challenge  the  legislative  power  to  classify  and 
the  numerous  decisions  upholding  that  authority. 
To  this  destructive  end  it  is  apparent  the  argu- 
ment must  come,  since  it  assumes  that  however 


212  LIABILITY   OF   RAILROADS 

completely  a  classification  may  be  justified  by 
general  considerations,  such  classification  may  not 
be  made  if  inequalities  be  detected  as  to  some 
persons  embraced  within  the  general  class  by  a 
critical  analysis  of  the  relation  of  the  persons  or 
things  otherwise  embraced  within  the  general 
class.  A  brief  reference  to  some  of  the  cases 
dealing  with  the  power  of  a  State  to  classify  will 
make  the  error  of  the  contention  apparent. 

"In  Magoun  v.  Illinois  Trust  &  Savings  Bank, 
170  U.  S.  283,  18  Sup.  Ct.  Rep.  594,  while  declar- 
ing that  the  power  of  a  State  to  distinguish,  select, 
and  classify  objects  of  legislation  was  of  course 
not  without  limitation,  it  was  said,  'necessarily 
this  power  must  have  a  wide  range  of  discretion.' 
After  referring  to  various  decisions  of  this  court, 
it  was  observed: 

"'There  is  therefore  no  precise  application  of 
the  rule  of  reasonableness  of  classification,  and 
the  rule  of  equality  permits  many  practical  in- 
equalities. And  necessarily  so.  In  a  classification 
for  governmental  purposes  there  cannot  be  an  ex- 
act exclusion  or  inclusion  of  persons  and  things.' 

"Again,  considering  the  subject  in  Orient  Ins, 
Co.  v.  Daggs,  172  U.  S.  557,  19  Sup.  Ct.  Rep.  281, 
it  was  reiterated  that  the  legislature  of  a  State 
has  necessarily  a  wide  range  of  discretion  in  dis- 
tinguishing, selecting,  and  classifying,  and  it  was 
declared    that    it    was  sufficient    to    satisfy   the 


TO   INTERSTATE   EMPLOYEES  213 

demand  of  the  Constitution  if  a  classification  was 
practical  and  not  palpably  arbitrary. 

"In  Minnesota  Iron  Co.  v.  Kline,  199  U.  S. 
593,  26  Sup.  Ct.  Rep.  159,  a  statute  of  Minnesota, 
providing  that  the  liability  of  railroad  companies 
for  damages  to  employees  should  not  be  diminished 
by  reason  of  accident  occurring  through  the  negli- 
gence of  fellow-servants,  was  held  not  to  discrimi- 
nate against  any  class  of  railroads,  or  to  deny 
the  equal  protection  of  the  laws  because  of  a 
proviso  which  excepted  employees  engaged  in 
construction  of  new  and  unopened  railroads.  In 
the  course  of  the  opinion  the  Court  said  (p.  598) : 

"'The  whole  case  is  put  on  the  proviso,  and 
the  argument  with  regard  to  that  is  merely  one 
of  the  many  attempts  to  impart  an  over-mathe- 
matical nicety  to  the  prohibitions  of  the  Four- 
teenth Amendment.'  These  principles  were  again 
applied  in  Martin  v.  Pittsburg  &  L.  E.  R.  Co., 
203  U.  S.  284,  27  Sup.  Ct.  Rep.  100,  and  the 
doctrines  were  also  fully  considered  and  reiter- 
ated at  this  term  in  Southwestern  Oil  Co.  v.  Texas, 
217  U.  S.  114,  30  Sup.  Ct.  Rep.  496." 

§  55.    Legislation   Applicable    only    to    Em- 
ployees   of   Railroad    Companies  is  not 
Arbitrary. 
In  the  case  of  Mobile,  Jackson  &  Kansas  City 

Rij.  Co.  v.  Turnipseed,  219  U.  S.  35,  31  Sup.  Ct. 


214  LIABILITY  OF  RAILROADS 

Rep.  136,  Mr.  Justice  Lurton,  delivering  the  opin- 
ion of  the  court,  conclusively  disposed  of  the  con- 
tention that  legislation  of  this  general  character 
is  objectionable  as  an  unjust  classification,  and 
said : 

"It  is  urged  that  this  legislation,  applicable  only 
to  employees  of  a  railroad  company,  is  arbitrary, 
and  a  denial  of  the  equal  protection  of  law,  unless 
it  be  limited  in  its  effect  to  employees  imperiled  by 
the  hazardous  business  of  operating  railroad  trains 
or  engines,  and  that  the  Mississippi  Supreme 
Court  had,  in  prior  cases,  so  defined  and  construed 
this  legislation.  Ballard  v.  Mississippi  Cotton  Oil 
Co.,  81  Miss.  532,  34  So.  Rep.  533;  Bradford  Con- 
struction Co.  v.  Heflin,  88  Miss.  314,  42  So.  Rep. 
174. 

"  It  is  now  contended  that  the  provision  has  been 
construed  in  the  present  case  as  applicable  to  an 
employee  not  subject  to  any  danger  or  peril 
peculiar  to  the  operation  of  railway  trains,  and 
that  therefore  the  reason  for  such  special  classifi- 
cation fails,  and  the  provision  so  construed  and 
applied  is  invalid  as  a  denial  of  the  equal  protec- 
tion of  the  law. 

"This  contention,  shortly  stated,  comes  to  this: 
that  although  a  classification  of  railway  employees 
may  be  justified  from  general  considerations  based 
upon  the  hazardous  character  of  the  occupation, 
such  classification  becomes  arbitrary  and  a  denial 


TO   INTERSTATE   EMPLOYEES  215 

of  the  equal  protection  of  the  law  the  moment 
they  are  found  to  embrace  employees  not  exposed 
to  hazards  peculiar  to  railway  operation. 

"But  this  court  has  never  so  construed  the  lim- 
itation imposed  by  the  Fourteenth  Amendment 
upon  the  power  of  the  State  to  legislate  with  ref- 
erence to  particular  employments  as  to  render 
ineffectual  a  general  classification  resting  upon 
obvious  principles  of  public  policy  because  it  may 
happen  that  the  classification  includes  persons  not 
subject  to  a  uniform  degree  of  danger.  The  in- 
sistence, therefore,  that  legislation  in  respect  of 
railway  employees  generally  is  repugnant  to  the 
clause  of  the  Constitution  guaranteeing  the  equal 
protection  of  the  law  merely  because  it  is  not  lim- 
ited to  those  engaged  in  the  actual  operation  of 
trains  is  without  merit. 

"The  intestate  of  the  defendant  in  error  was 
not  engaged  in  the  actual  operation  of  trains.  But 
he  was  nevertheless  engaged  in  a  service  which 
subjected  him  to  dangers  from  the  operation  of 
trains,  and  brought  him  plainly  within  the  gen- 
eral legislative  purpose.  The  case  in  hand  illus- 
trates the  fact  that  such  employees,  though  not 
directly  engaged  in  the  management  of  trains, 
are  nevertheless  within  the  general  line  of  hazard 
inherent  in  the  railway  business.  The  deceased 
was  the  foreman  of  a  section  crew.  His  business 
was  to  keep  the  track  in  repair.    He  stood  by  the 


216  LIABILITY  OF  RAILROADS 

side  of  the  track  to  let  a  train  pass  by;  a  derailment 
occurred  and  a  car  fell  upon  him  and  crushed  out 
his  life. 

"In  the  late  case  of  Louisville  &  N.  R.  Co.  v. 
Melton,  218  U.  S.  36,  30  Sup.  Ct.  Rep.  676,  an 
Indiana  fellow-servant  act  was  held  applicable 
to  a  member  of  a  railway  construction  crew  who 
was  injured  while  engaged  in  the  construction 
of  a  coal  tipple  alongside  of  the  railway  track. 
This  whole  matter  of  classification  was  there  con- 
sidered. 'Nothing  more  need  be  said  upon  the 
subject,  for  the  case  upon  this  point  is  fully  covered 
by  the  decision  referred  to." 

In  other  cases  the  Supreme  Court  has  affirmed 
the  constitutional  validity  of  statutes  of  States, 
which  confined  to  railroads  a  remedy  for  injuries 
otherwise  open  to  the  "common  employment" 
defense.  The  classification  of  railroads  was  held 
to  be  reasonable  and  not  arbitrary.  Missouri 
Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205,  8  Sup. 
Ct.  Rep.  1161;  Tullis  v.  Lake  Erie  &  W.  R.  Co., 
175  U.  S.  348,  20  Sup.  Ct.  Rep.  136;  St.  Louis,  M. 
B.  T.  Ry.  Co.  v.  Callahan,  194  U.  S.  628,  24  Sup. 
Ct.  Rep.  857;  Chicago,  Kansas  &  Western  R.  Co. 
v.  Pontius,  157  U.  S.  209,  15  Sup.  Ct.  Rep.  585; 
and  Peirce  v.  Van  Dusen,  78  Fed.  Rep.  693. 

Mr.  Justice  McKenna  delivering  the  opinion 
of  the  court  in  Magoun  v.  Illinois  Trust  &  Savings 
Bank,  170  U.  S.  283,  18  Sup.  Ct.  Rep.  594,  said: 


TO   INTERSTATE   EMPLOYEES  217 

"The  clause  of  the  Fourteenth  Amendment  es- 
pecially invoked  is  that  which  prohibits  a  State 
denying  to  any  citizen  the  equal  protection  of  the 
laws.  What  satisfies  this  equality  has  not  been 
and  probably  never  can  be  precisely  defined. 
Generally  it  has  been  said  that  it  'only  requires 
the  same  means  and  methods  to  be  applied  im- 
partially to  all  the  constituents  of  a  class  so  that 
the  law  shall  operate  equally  and  uniformly  upon 
all  persons  in  similar  circumstances.'  Kentucky 
Railroad  Tax  Cases,  115  U.  S.  321,  337,  6  Sup. 
Ct.  Rep.  57.  It  does  not  prohibit  legislation  which 
is  limited,  either  in  the  objects  to  which  it  is 
directed  or  by  the  territory  within  which  it  is 
to  operate.  It  merely  requires  that  all  persons 
subjected  to  such  legislation  shall  be  treated  alike 
under  like  circumstances  and  conditions,  both  in 
the  privilege  conferred  and  the  liabilities  imposed. 
Hayes  v.  Missouri,  120  U.  S.  68,  7  Sup.  Ct.  Rep. 
350.  Similar  citations  could  be  multiplied.  But 
what  is  the  test  of  likeness  and  unlikeness  of  cir- 
cumstances and  conditions?  These  expressions 
have  almost  the  generality  of  the  principle  they 
are  used  to  expound,  and  yet  they  are  definite 
steps  to  precision  and  usefulness  of  definition, 
when  connected  with  the  facts  of  the  cases  in 
which  they  are  employed.  With  these  for  illus- 
tration it  may  be  safely  said  that  the  rule  pre- 
scribes no  rigid  equality  and  permits  to  the  dis- 


218  LIABILITY   OF   RAILROADS 

cretion  and  wisdom  of  the  State  a  wide  latitude 
as  far  as  interference  by  this  court  is  concerned. 
Nor  with  the  impolicy  of  a  law  has  it  concern.  Mr. 
Justice  Field  said  in  Mobile  County  v.  Kimball,  102 
TJ.  S.  691,  that  this  court  is  not  a  harbor  in  which 
can  be  found  a  refuge  from  ill-advised,  unequal, 
and  oppressive  State  legislation.  And  he  observed 
in  another  case,  '  It  is  hardly  necessary  to  say  that 
hardship,  impolicy,  or  injustice  of  state  laws  is  not 
necessarily  an  objection  to  their  constitutional 
validity.'  .  .  . 

"And  in  matters  not  of  taxation,  if  A  be  a 
different  kind  of  corporation  than  B,  it  may  sub- 
ject A  to  a  different  rule  of  responsibility  to  ser- 
vants than  B,  Missouri  Pacific  Ry.  Co.  v.  Mackey, 
127  U.  S.  205,  8  Sup.  Ct.  Rep.  1161;  to  a  different 
measure  of  damages  than  B,  Minneapolis  &  St. 
Louis  Ry.  Co.  v.  Beckwith,  129  U.  S.  26,  9  Sup.  Ct. 
Rep.  207,  and  it  permits  special  legislation  in  all  of 
its  varieties.  Missouri  Pacific  Ry.  Co.  v.  Mackey, 
127  U..S.  205,  8  Sup.  Ct.  Rep.  1161;  Minneapolis 
&  St.  Louis  Ry.  Co.  v.  Herrick,  127  U.  S.  210,  8 
Sup.  Ct.  Rep.  1176;  Duncan  v.  Missouri,  152  U.  S. 
377,  14  Sup.  Ct.  Rep.  570.  In  other  words,  the 
State  may  distinguish,  select,  and  classify  objects 
of  legislation,  and  necessarily  this  power  must 
have  a  wide  range  of  discretion.  .  .  . 

"And  Mr.  Justice  Brewer,  in  Gulf,  Colorado  & 
S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  150, 17  Sup.  Ct.  Rop. 


TO   INTERSTATE   EMPLOYEES  219 

255,  after  a  careful  consideration  of  many  cases, 
said:  'It  is  apparent  that  the  mere  fact  of  classifi- 
cation is  not  sufficient  to  relieve  a  statute  from 
the  reach  of  the  equality  clause  of  the  Four- 
teenth Amendment,  and  that  in  all  cases  it  must 
appear  not  only  that  a  classification  has  been 
made,  but  also  that  it  is  one  based  upon  some  rea- 
sonable ground  —  some  difference  which  bears  a 
just  and  proper  relation  to  the  attempted  classi- 
fication—and is  not  a  mere  arbitrary  selection." 
Limited  in  its  application  to  the  servants  of  an 
interstate  railroad  while  such  railroad  and  the 
injured  servant  are  engaged  in  interstate  com- 
merce, the  language  of  the  Supreme  Court  of 
North  Carolina  in  its  consideration  of  a  statute 
of  that  State  is  clearly  applicable  here.  In  Nich- 
olson v.  Transylvania  R.  Co.,  138  N.  C.  516,  51 
S.  E.  Rep.  40,  the  Court  said  that  "the  inten- 
tion of  the  legislature  was  that  the  doctrine  of 
the  non-liability  of  the  master  for  injuries  to  an 
employee  caused  by  the  negligence  of  a  fellow- 
servant  should  be  abolished  as  to  all  employees 
in  railroad  service,  'whether  (as  we  have  said  in 
Sigman  v.  Southern  R.  Co.,  135  N.  C.  184,  47 
S.  E.  Rep.  421)  they  are  running  trains  or  ren- 
dering any  other  service,  we  have  no  disposition 
to  do  otherwise  than  to  affirm  fully  our  ruling 
already  made  and  cited  above.  But  the  Act 
applies  only  to  employees  of  a '  railroad-  oper at ing ' ; 


220  LIABILITY  OF  RAILROADS 

not  that  such  employees  must  be  operating  the 
trains,  but  they  must  be  employees  in  some  depart- 
ment of  its  work  of  a  railroad  which  is  being  oper- 
ated. Such  business  is  a  distinct,  well-known 
business,  with  many  risks  peculiar  to  itself,  and 
all  the  employees  in  such  business,  whether  run- 
ning trains,  building  or  repairing  bridges,  laying 
tracks,  working  in  the  shops,  or  doing  any  other 
work  in  the  service  of  an  'operating  railroad,'  are 
classified  and  exempted  from  the  rule  which  re- 
quires employees  to  assume  the  risk  of  all  injuries 
which  may  be  caused  by  the  negligence  of  a  fellow- 
servant." 

§  56.  The  Inclusion  of  All  Railroad  Em- 
ployees is  a  Reasonable  Classification. 

"Reasonableness"  may  be  predicated  of  a 
classification  which  follows  the  judicial  rule  of 
inclusion  of  all  in  a  common  employment.  When 
it  is  admitted  that  railroading  is  a  hazardous  oc- 
cupation to  which  legislative  regulation  is  appli- 
cable, it  cannot  be  asserted  that  it  is  "  unreason- 
able" or  " arbitrary"  to  include  all  within  the 
common  employment  of  railroading  as  coming 
within  the  scope  of  legislative  classification. 

The  courts  probably  assumed,  as  a  reason  for 
the  defense  of  common  employment,  the  diffi- 
culty of  drawing  a  line  between  servants  in  a- 
common  employment.     May  not  the  same  diffi- 


TO  INTERSTATE  EMPLOYEES  221 

culty  in  defining  in  precise  terms  what  occupations 
in  railroading  are  extraneous  to  the  hazards  of 
such  occupation,  be  a  " reasonable"  basis  for 
their  inclusion  in  a  statute  intended  to  remedy  the 
injustice  of  the  common-employment  doctrine  of 
the  common  law? 

As  all  in  the  common  employment  are  unified 
by  the  common-law  rule,  can  it  be  said  to  be  un- 
reasonable or  arbitrary  to  include  them  all  in  a 
statute  intended  to  relieve  from  the  disability  of 
servants  to  recover  under  the  common-law  rule? 

Such  a  classification  as  this  statute  makes, 
certainly  "is  not  a  mere  arbitrary  selection."  It 
is  "based  upon  some  reasonable  ground."  It  is 
based  upon  "some  difference  which  bears  a  just 
and  proper  relation  to  the  attempted  classifica- 
tion." It  cannot  be  said  that  the  classification 
adopted  in  the  statute  is  a  "mere  excuse  for  unjust 
discrimination,"  when  its  purpose  is  to  relieve  a 
class  from  a  "discrimination"  existing  in  the  com- 
mon law  which  the  legislature  deems  "unjust." 

As  it  has  been  determined  that  a  classification 
of  "railroads"  in  a  remedial  statute  like  the  pres- 
ent is  open  to  no  constitutional  objection,  the  in- 
clusion in  its  terms  of  all  railroad  employees  in  the 
same  common  employment  is  not  constitutionally 
objectionable. 

It  is  a  general  inclusion.  It  is  all-embracing. 
It  divides  railroad  employees  into  no  class.     It 


222  LIABILITY  OF  RAILROADS 

makes  no  distinction  between  employees  in  rail- 
road service.  It  favors  no  branch  of  railroad 
service.  All  the  servants  of  railroads  are  treated 
alike.  The  only  limitation  made  is  the  necessary 
one  that  the  railroad  shall  be  engaged  in  interstate 
commerce,  and  the  remedy  is  given  to  all  servants 
of  such  a  railroad  who  are  injured  "while  engaged" 
in  interstate  commerce.  This  limitation  is  made 
because  necessary  to  bring  the  case  within  the 
scope  of  the  federal  power.  No  other  limitation, 
division,  or  classification  of  the  servants  of  rail- 
roads is  made  or  attempted.  In  general  terms  it 
may  be  asserted  that  all  such  servants  who  meet 
with  death  or  injury  while  engaged  in  a  perilous 
employment  are  sufficiently  within  the  scope  of 
its  perils  to  permit  their  classification  together. 
"If  a  man  is  injured  or  killed  in  any  .line  of 
work,  it  was  hazardous  in  his  case."  Message  of 
President  Roosevelt  to  Congress,  December  8, 
1908. 

The  killed  and  injured  servants  are  classified 
together,  and  no  classification  or  specification  of 
the  precise  nature  of  the  accident  causing  the 
death  or  injury  is  necessary.  The  perilous  nature 
of  the  general  employment  of  railroading  to  which 
their  service  has  constant  relation  may  be  a 
reasonable  and  sufficient  basis  for  the  classifica- 
tion of  all  who  have  been  killed  and  injured  in 
such  service. 


TO   INTERSTATE  EMPLOYEES  223 

There  is  no  compulsory  requirement  that  train 
accidents  be  segregated  from  shop  accidents,  or 
the  casualties  arising  from  track  work  or  construc- 
tion work.  Each  of  these  branches  of  railroad  work 
has  its  own  perils.  Congress  has  the  power  to 
reach  such  of  them  as  have  any  relation  to  inter- 
state commerce,  and  has  no  power  to  reach  similar 
accidents  in  service  of  other  employers  not  engaged 
in  interstate  commerce. 

All  who  have  contracts  of  service  with  the  car- 
rier may  be  included  in  legislation  which  affects 
an  implied  term  in  said  contract  if  the  legislature 
has  the  power  over  the  subject-matter.  If  the 
subject-matter  is  interstate  service,  Congress  has 
power  to  regulate  the  implied  terms  of  all  con- 
tracts of  service. 

In  the  congressional  legislation  under  the  com- 
merce clause  regulating  the  issue  of  passes,  all 
employees  of  carriers  have  been  classed  together 
as  an  exception  to  the  general  rule  which  makes 
penal  the  issue  of  passes  to  the  public  generally. 

The  classification  together  of  all  the  employees 
of  a  railroad  is  not  an  unfamiliar  one,  and  cannot 
be  said  to  be  arbitrary  or  discriminatory.  The 
same  classification  may  be  found  in  statutes 
enacted  in  England  upon  the  same  general  subject 
as  that  upon  which  Congress  has  legislated. 

The  final  and  conclusive  answer  to  the  conten- 
tion that  all  the  employees  of  a  railroad  cannot 


224  LIABILITY   OF   RAILROADS 

be  the  beneficiaries  of  remedial  legislation  is 
made  by  the  Supreme  Court  in  the  case  of  Balti- 
more &  0.  R.  Co.  v.  Baugh,  149  U.  S.  368,  384, 
13  Sup.  Ct.  Rep.  914,  where  it  was  declared  that 
"All  enter  into  the  service  of  the  same  master  to 
further  his  interests  in  the  one  enterprise." 


TO   INTERSTATE   EMPLOYEES  225 


CHAPTER   XII 

CONGRESS    MAY    PROVIDE    A    REMEDY    FOR     IN- 
JURIES CAUSED  BY  INTRASTATE  SERVANTS 

§  57.  The  Injury  from  a  Cause  within  the 
Control  of  the  Interstate  Employer 
Constitutes  the  Interference  with  In- 
terstate Commerce. 

It  has  been  asserted  that  there  is  constitutional 
objection  to  the  Act  in  that  it  affords  a  remedy 
to  an  interstate  employee  who  may  be  injured  as 
the  result  of  negligence  of  a  fellow-servant  who 
is  engaged  in  intrastate  commerce.  (Report  of 
Committee  appointed  by  Conference  of  Railroad 
Counsel  at  Atlantic  City,  N.  J.,  July  13,  14,  15, 
1908.) 

If  the  casualty  resulting  to  an  employee  of  an 
interstate  railroad,  while  such  employee  is  him- 
self engaged  in  interstate  commerce,  results  from 
a  cause  over  which  the  interstate  employer  has 
authority  and  control,  there  does  not  seem  to  be 
much  ground  for  discrimination  as  to  the  local 
or  interstate  status  of  such  cause. 

Congress  has  said  in  effect  that  if  the  master 
allows  or  permits  any  agency  over  which  he  has 
authority  and  control  to  invade  the  domain  of 


226  LIABILITY   OF  RAILROADS 

interstate  commerce  to  the  extent  of  violating 
the  right  to  safety  of  his  interstate  employees, 
he  cannot  plead  as  a  defense  the  fellow-servant 
doctrine. 

The  congressional  power  extends  to  any  ser- 
vant of  an  interstate  road,  while  he  is  about  his 
master's  business,  and  is  engaged  in  interstate 
commerce,  to  the  extent  of  protecting  him  from 
any  injury  arising  from  a  cause  within  his  em- 
ployer's control.  The  injury  to  him  constitutes 
an  interference  with  interstate  commerce,  and 
Congress  has  the  power  to  fix  the  liability  of  the 
carrier  therefor. 

If  an  act  of  an  intrastate  servant  is  so  directly 
connected  with  interstate  commerce  that  it  in- 
jures one  who  is  engaged  in  interstate  commerce, 
such  act  is  so  proximate  to  interstate  commerce 
as  to  bring  it  within  the  power  of  Congress.  In  re 
Debs,  158  U.  S.  564,  15  Sup.  Ct.  Rep.  900. 

The  acts  of  the  Chicago  rioters  in  the  Debs 
Case  were  in  one  sense  purely  local.  But  the 
interference  with  instrumentalities  of  interstate 
commerce  brought  such  acts  within  the  scope  of 
the  federal  power. 

Under  the  application  of  the  doctrine  of  re- 
spondeat superior,  others  than  the  actual  par- 
ticipants in  violence  were  punished  under  the 
power  of  the  federal  government  to  protect  com- 
merce.      Similarly    the    doctrine    of    respondeat 


TO   INTERSTATE   EMPLOYEES  227 

superior  may  be  permitted  to  apply  to  an  injury 
to  an  interstate  servant  of  an  interstate  rail- 
road from  local  causes  and  instrumentalities 
which  are  within  the  control  of  such  interstate 
carrier. 

Even  an  intrastate  servant  of  an  interstate 
carrier  is  one  of  the  cogs  in  a  mechanism  which 
as  a  complete  whole  is  interstate  and  within 
federal  control. 

As  Lord  Colonsay  said  in  Wilson  v.  Merry,  19 
L.  T.  Rep.  n.  s.  30;  L.  R.  1  Scotch  App.  326: 
"We  must  look  to  the  functions  the  party  dis- 
charges and  his  position  in  the  organism  of  the 
force  employed,  and  of  which  he  forms  a  con- 
stituent part."  >. 

Such   an   intrastate   servant   is   hired  by   the  \ 
interstate  carrier,  is  paid  by  the  interstate  car-    \ 
rier,  his  service  is  for  the  benefit  of  the  interstate     I 
carrier.     And  his  service  is  essentially  necessary 
for  the  interchange  of  local  and  interstate  traffic, 
and    is    always    performed    under    orders    and 
authority    emanating    from    superior    officers    of    I 
the    company,    who    are    themselves    interstate 
employees. 

As  a  matter  of  fact,  there  is  no  distinction  as 
to  the  employment  by  carriers  of  their  servants  in 
interstate  and  intrastate  commerce.  As  already 
cited  from  the  Baugh  Case,  149  U.  S.  368,  384, 
13  Sup.  Ct.  Rep.  914:   "All  enter  into  the  service 


228  LIABILITY  OF  RAILROADS 

of  the  same  master,  to  further  his  interests  in 
the  one  enterprise." 

§  58.  The  Impossibility  of  Segregating  In- 
trastate from  Interstate  Employees. 

So  great  is  the  intermingling  of  interstate  and 
state  traffic  in  the  business  of  an  interstate  rail- 
road, that  it  would  be  almost,  if  not  absolutely, 
impossible  to  name  any  servant  of  an  interstate 
road  who  was  solely  and  exclusively  a  state  ser- 
vant or  agent  of  that  railroad. 

An  interstate  railroad  is  run  as  a  unit.  All  the 
departments  and  divisions  of  such  railroads  are 
closely  correlated  and  intermingled,  and  it  would 
be  difficult  to  define  a  distinct  line  of  segregation. 
The  financial  affairs  of  the  road  are  managed  as 
a  whole.  The  direction  and  control  of  trains  are 
under  one  head.  The  general  orders  covering  all 
operations  of  the  road  come  from  the  same 
general  manager.  Particular  orders  as  to  the 
dispatch  of  trains  originate  with  interstate  train 
dispatchers.  The  same  engines,  cars,  and  other 
instrumentalities  are  indiscriminately  used  in 
interstate  and  intrastate  business.  The  same 
tracks  are  used  for  both  interstate  and  intra- 
state traffic.  The  most  distinctively  local  branches 
have  physical  connection  with  the  interstate 
tracks,  and  foreign  cars  loaded  with  interstate 
traffic,  and   trains  of  the  road  itself  containing 


TO  INTERSTATE  EMPLOYEES  229 

cars  loaded  in  whole  or  in  part  with  interstate 
traffic,  pass  indiscriminately  over  these  local 
divisions. 

At  the  ticket  offices  of  every  local  branch  of 
such  a  railroad  tickets  are  sold  over  the  entire 
interstate  railroad,  and  also  over  intrastate  con- 
necting lines.  Inasmuch  as  interstate  passengers 
are  thus  solicited  and  afterwards  carried  over 
such  seemingly  local  branches,  all  engaged  in 
their  transportation,  and  all  co-operating  in  the 
maintenance  of  the  track  for  their  transporta- 
tion, are  engaged  in  interstate  commerce.  \ 

Every  local  freight  station  on  the  line  receives  \ 
and  transmits  freight  for  all  other  stations  on  the 
line,  and  for  points  beyond  the  State,  and  thus 
all  who  co-operate  in  any  of  the  work  of  the  re- 
ceipt or  transmission  of  such  freight  are  engaged 
in  interstate  commerce.  All  who  participate  in 
the  maintenance  of_the  instrumentalities  for  the 
general  use  of  the  road,  even  in  the  maintenance 
of  such  instrumentalities  as  are  used  on  purely 
local  branches,  necessarily  participate  in  the 
work  of  interstate  commerce,  because  interstate 
commerce  is  carried  on  over  every  part,  branch, 
section,  and  division  of  the  entire  system  of  such 
interstate  road. 


/ 


230  LIABILITY   OF   RAILROADS 


CHAPTER  XIII 

A    REVIEW    OF    THE    HOXIE    CASE 

§  59.  Relation  of  this  Act  to  Sovereignty 
of  States. 

The  Supreme  Court  of  Errors  of  Connecticut 
in  the  case  of  Hoxie  v.  New  York,  N.  H.  &  H.  R. 
Co.,  82  Conn.  352,  declared  the  Employers'  Lia- 
bility Act  of  1908  to  be  unconstitutional,  and  in 
the  course  of  the  opinion  spoke  of  the  statute 
as  one  which  "  reduces  the  limits  within  which 
sovereignty  of  the  States  has  for  more  than  a 
century  been  freely  exercised." 

As  to  commerce,  the  sovereignty  of  a  State  ex- 
tends only  to  that  commerce  which  is  exclusively 
internal  and  within  its  own  limits.  No  sovereign 
power  of  a  State  ever  existed  over  commerce  with 
other  States. 

Over  interstate  commerce  federal  authority  is 
paramount,  and  has  been  ever  since  the  adoption 
of  the  Constitution. 

This  Act  confers  a  right  of  action  not  existing 
under  the  laws  of  Connecticut,  and  not  existing 
at  common  law,  for  the  benefit  of  an  employee  of 
an  interstate  railroad,  or  his  dependents  if  he  is 
injured    or    killed    while    engaged    in    interstate 


TO  INTERSTATE  EMPLOYEES  231 

commerce.  It  confers  a  federal  right  where  none 
existed  heretofore. 

How  does  this  "reduce  the  limits  of  the  sov- 
ereignty of  the  States?"  No  right  existing  by 
the  laws  of  the  States  is  reduced,  impaired,  or 
qualified. 

No  right  of  any  servant  of  an  exclusively  local 
railroad  is  in  any  manner  affected  or  impaired 
by  this  statute.  No  limitation  is  made  or  at- 
tempted by  the  Act  upon  the  enforcement  of  a 
right  of  action  of  a  local  servant  of  a  local  rail- 
road. By  its  terms  there  is  no  impairment  of 
any  statutory  or  judicial  rule  applicable  to  ac- 
tions of  which  the  State  has  sole  jurisdiction. 

No  limitation  of  the  sovereignty  of  the  States 
exists  because  a  federal  right,  now  conferred  where 
none  heretofore  existed,  is  different  in  its  terms 
and  conditions  from  the  terms  and  conditions 
under  which  actions  which  are  authorized  under 
local  law  are  heard  and  determined  in  local 
courts. 

No  change  in  local  actions  under  local  laws  is 
made  or  is  sought  to  be  made. 

No  limitation  can  be  predicated  of  state  au- 
thority when  all  actions  constitutionally  au- 
thorized by  the  statutes  of  a  State,  or  arising 
exclusively  in  such  commerce  as  is  within  the  sole 
jurisdiction  of  the  State,  remain  unaffected  and 
uncontrolled  by  the  terms  of  the  federal  statutes. 


232  LIABILITY   OF   RAILROADS 

No  obligation  exists  to  compel  Congress  in  the 
establishment  of  a  new  federal  right  to  confer  it 
in  terms  which  shall  be  uniform  with  the  terms 
and  conditions  under  which  somewhat  similar 
rights  are  enforced  in  the  courts  of  the  States. 

Such  compulsion  of  uniformity  would  render 
futile  any  attempt  by  Congress  to  legislate  upon 
any  subject  where  state  legislation  existed  upon 
subjects  more  or  less  remotely  related  to  the  sub- 
ject-matter of  proposed  federal  legislation. 

When  no  right  within  the  scope  of  Constitu- 
tional exercise  of  state  power  is  impaired  or 
affected,  the  establishment  by  Congress  of  a 
federal  right  in  the  exercise  of  its  constitutional 
powers  cannot  properly  be  said  to  "limit  the 
sovereignty  of  the  States." 

There  is  and  can  be  no  " conflict"  and  no  limi- 
tation of  state  sovereignty,  where  the  national 
Congress  creates  a  new  right  of  action  under  cir- 
cumstances where  the  common  law  and  the  law 
of  a  "State"  denied  such  a  right  of  action. 

The  terms  and  conditions  of  such  a  federal 
cause  of  action  have  no  relation  to  the  terms  and 
conditions  under  which  causes  of  action  under 
substantially  different  circumstances  exist  under 
the  undoubted  power  and  authority  of  the  State. 

Where,  as  disclosed  in  the  Connecticut  case,  a 
State  right  to  recover  from  an  employer  for  the 
negligence  of  a  fellow-employee  is  non-existent, 


TO   INTERSTATE   EMPLOYEES  233 

how  can  the  creation  of  a  federal  right  under 
such  circumstances  limit  the  sovereignty  of  the 
States  or  conflict  with  their  procedure?  As  no 
right  of  action  exists  under  the  circumstances  in 
Connecticut,  it  is  extremely  difficult  to  under- 
stand why,  as  the  court  in  the  Hoxie  Case  says, 
the  proceeding  authorized  by  the  federal  law 
"could  only  be  sustained  by  disregarding  many 
of  the  requirements  of  our  own  law  [that  of 
Connecticut]  with  respect  to  both  pleadings  and 
evidence.' ' 

As  before  stated,  the  federal  law  establishes 
no  rule  of  pleading  or  evidence.  No  more  diffi- 
culty exists  in  the  enforcement  of  such  a  cause 
of  action  as  Congress  has  here  established  in  the 
courts  of  a  State  than  in  the  courts  of  the  United 
States.  The  procedure  in  both  is  identical.  The 
recognition  of  such  a  right  in  either  the  courts  of 
a  State  or  in  the  courts  of  the  United  States  in  no 
manner  limits  the  sovereignty  or  impairs  the  au- 
thority of  the  State. 

The  past  inaction  of  Congress  on  a  particular 
subject  within  its  express  powers  affords  no  aid 
to  an  argument  against  its  authority  upon  such 
subject. 

"Surely  there  is  no  statute  of  limitations  which 
bars  Congress  from  the  exercise  of  any  of  its 
granted  powers,  nor  any  authority,  save  that  of 
the  people  whom  it  represents,  which  may  with 


234  LIABILITY  OF  RAILROADS 

propriety  challenge  the  wisdom  of  its  choice  of 
the  time  when  remedies  shall  first  be  applied  to 
what  it  deems  wrong."  Mr.  Justice  Moody,  dis- 
senting opinion  Employers'  Liability  Cases,  207 
U.  S.  522. 

The  court  in  the  Hoxie  Case  refers  to  the  Act 
in  question  as  "an  Act  of  Congress  which,  if 
valid,  reduces  the  limits  within  which  the  sov- 
ereignty of  the  State  has  for  more  than  a  century 
been  freely  exercised."  But  if  the  Act  in  question 
is  a  regulation  of  commerce,  the  fact  that  it  in- 
vades the  reserved  powers  of  the  State,  or  the 
sovereignty  exercised  under  the  police  power  of 
the  State  for  more  than  a  century,  does  not  in 
any  degree  affect  or  limit  the  power  of  Congress. 

That  legislative  power  over  a  subject-matter  is 
within  the  reserved  powers  of  the  States  or  within 
the  police  power  of  the  State  does  not  impair 
the  paramount  right  of  Congress  to  act  upon 
that  subject-matter  in  the  execution  of  any  of 
the  powers  delegated  to  Congress  by  the  Con- 
stitution of  the  United  States.  Gibbons  v.  Ogden, 
9  Wheat.  1,  210,  211. 

§  60.     No     Action    under     Two     Thousand 

Dollars. 

In  the  course  of  the  opinion  in  the  Hoxie  Case 

the  Court  says:   "It  is  true  that  under  the  present 

statutes  of  the  United  States  no  action  under  the 


TO   INTERSTATE   EMPLOYEES  235 

Act  of  1908  would  lie  in  a  court  of  the  United 
States  unless  the  damages  claimed  exceeded 
$2,000.  Congress  may,  however,  well  be  deemed 
to  have  had  in  mind  the  power  of  the  plaintiff  to 
claim  what  damages  he  pleases,  and  the  rule  that 
the  sum  named  determines  the  jurisdiction." 

To  claim  that  Congress  intended  either  that  no 
right  of  action  should  lie  in  any  court  for  a  case 
legitimately  involving  less  than  $2,000,  or  that 
plaintiff  should  claim  excessive  damages,  to  bring 
himself  within  the  jurisdiction  of  a  Circuit  Court 
of  the  United  States,  is  tantamount  to  the  asser- 
tion that  Congress  did  not  intend  that  actions 
under  the  Act  of  1908  should  be  brought  in  state 
courts.  But  the  fact  that  no  action  for  damages 
under  $2,000  would  lie  in  any  court  if  confined 
under  the  statute  to  the  United  States  Circuit 
Courts,  would  seem  to  negative  the  suggestion 
that  Congress  intended  to  bar  such  actions,  and 
to  indicate  the  congressional  intent  that  they 
should  be  brought  in  the  state  courts. 

In  1  Foster's  Federal  Practice,  90,  the  rule  is 
plainly  laid  down  and  fortified  by  ample  au- 
thority that,  "Where  the  plaintiff  exaggerates 
the  amount  in  dispute  the  court  may,  on  exception 
properly  taken,  try  the  question  of  jurisdiction 
separately  without  a  jury,  and  if  the  damages 
appear  to  have  been  purposely  and  fraudulently 
magnified,  it  may  dismiss  the  case.  ..." 


236  LIABILITY   OF   RAILROADS 

Among  the  cases  cited  in  support  of  this  propo- 
sition are  the  following:  Globe  Refining  Co.  v. 
Landa  Cotton  Oil  Co.,  190  U.  S.  540,  23  Sup.  Ct. 
Rep.  754;  Chicago  Cheese  Co.  v.  Fogg,  53  Fed. 
Rep.  72;  Simon  v.  House,  46  Fed.  Rep.  317; 
H olden  v.  Utah  &  M.  Mach.  Co.,  82  Fed.  Rep. 
209;  Horst  v.  Merkley,  59  Fed.  Rep.  502;  Max- 
well v.  Atchison,  T.  &  S.  F.  R.  Co.,  34  Fed.  Rep. 
286;  Bedford  Quarries  Co.  v.  Welch,  100  Fed.  Rep. 
513;  Bank  of  Arapahoe  v.  David  Bradley  Co.,  72 
Fed.  Rep.  867. 

In  contrast  with  the  suggestion  of  an  exaggera- 
tion of  a  plaintiff's  claim  as  a  basis  for  the  juris- 
diction of  the  United  States  Circuit  Court  in  cases 
involving  under  $2,000,  may  be  noted  the  case 
of  Smeltzer  v.  St.  Louis  &  S.  F.  R.  Co.,  168  Fed. 
Rep.  420,  in  which  the  Court,  referring  to  this 
same  statute,  said:  "  .  .  .  suits  for  $2,000  and 
less  must  be  brought  in  the  state  courts,  other- 
wise jurisdiction  obtains  in  no  court,  state  or 
federal,  for  that  class  of  cases,  and  the  Act  of 
Congress,  to  that  extent,  is  unenforceable.  Any 
other  conclusion  would  not  only  nullify  the 
twentieth  section  of  the  Hepburn  Act  under  con- 
sideration, but  many  other  Acts  of  deep  concern 
to  the  country,  among  others  Act  May  30, 
1908,  c.  225,  35  Stat.  476,  Ho  promote  the  safety 
of  employees  on  railroads';  Act  April  22,  1908, 
c.   149,  35  Stat.  65,  known  as  the  'Employers' 


TO   INTERSTATE   EMPLOYEES  237 

Liability  Act';  Act  June  29,  1906,  c.  3594,  34 
Stat.  G07  (U.  S.  Comp.  St.  Supp.  1907,  p.  918), 
known  as  the  'Act  to  prevent  cruelty  to  animals 
while  in  transit ' ;  and  others  which  might  be 
cited." 

It  is  provided  by  the  Judiciary  Act  of  March 
3,  1875,  18  Stat.  472  (U.  S.  Comp.  Stat.  1901, 
511):  "That  if  in  any  suit  commenced  in  a  Cir- 
cuit Court  ...  it  shall  appear  to  the  satisfac- 
tion of  said  Circuit  Court  .  .  .  that  such  suit  does 
not  really  and  substantially  involve  a  dispute  or 
controversy  properly  within  the  jurisdiction  of 
said  Circuit  Court,  .  .  .  the  said  Circuit  Court 
shall  proceed  no  further  therein,  but  shall  dismiss 
the  suit.  ..." 

This  ruling  in  the  Hoxie  Case,  if  sustained, 
would  leave  any  citizen  with  a  federal  right  to 
recover  an  amount  under  $2,000  without  a 
remedy  in  any  court  in  the  land,  except  in  the 
Territories  and  District  of  Columbia.  Assignees 
in  bankruptcy,  national  banks,  and  all  who 
base  a  right  upon  a  federal  law,  to  recover  a 
sum  less  than  $2,000,  would  find  no  court  in 
the  land  open  to  them,  if  this  rule  enunciated 
by  the  Connecticut  court  were  to  be  generally 
applied. 

But  it  is  said  the  application  is  made  only  to 
a  "new  cause  of  action"  created  by  Congress. 
Yet   there  was  a  time  when  each  of  such  now 


238  LIABILITY   OF   RAILROADS 

well-established  causes  of  action  was  new,  and  it 
was  never  thought  proper  to  bar  them  from  state 
courts. 

§  61.  Action  by  Personal  Representative 
and  Distribution  of  Fund. 
In  the  course  of  the  opinion  in  the  Hoxie  Case 
it  was  said:  "The  Act  gives  a  remedy  for  injuries 
causing  death,  without  limitation  of  the  damages 
recoverable,  in  favor  of  the  executor  or  adminis- 
trator; the  fund  to  be  distributed  in  a  manner 
which  is  inconsistent  with  the  law  of  every  State 
with  respect  to  the  devolution  of  the  estate  of  a 
deceased  person.  In  our  opinion  Congress  cannot 
create  such  a  right  of  action  in  favor  of  personal 
representatives  of  an  inhabitant  of  a  State.  They 
are  appointed,  or  their  appointment  is  approved, 
by  authority  of  the  State,  exercised  through  some 
court  to  which  they  are  accountable.  If  the 
damages  recoverable  are  to  be  treated  as  repre- 
senting estate  left  by  the  decedent,  it  is  for  the 
State  of  his  domicile  to  regulate  their  distribution. 
If  they  are  to  be  treated  as  a  fund  created  by  this 
Act,  which  does  not  represent  anything  that  ever 
belonged  to  the  decedent,  it  was,  in  our  opinion, 
not  within  the  competency  of  Congress  thus  to 
bring  into  existence  a  new  duty  of  executors  or 
administrators  to  collect  and  a  new  duty  of  mas- 
ters to  pay  what  the  decedent  never  owned.     Such 


TO   INTERSTATE   EMPLOYEES  239 

legislation  falls  solely  within  the  sphere  of  the 
States." 

In  United  States  v.  Hall,  98  U.  S.  343,  objections 
similar  to  those  which  the  court  here  urges  were 
raised  to  the  constitutionality  of  an  act  of  Con- 
gress providing  punishment  for  "every  guardian 
.  .  .  who  embezzles  or  fraudulently  converts  the 
pension  of  his  ward." 

The  defendant  contended  in  that  case  that  such  a 
law  was  unconstitutional  on  the  following  grounds : 

"a.  That  it  is  municipal  in  its  character,  oper- 
ating on  the  conduct  of  individuals,  and  that  it 
assumes  to  take  the  place  of  ordinary  state 
legislation. 

11  b.  That  if  Congress  may  pass  such  a  law, 
then  Congress  may  assume  all  the  police  regu- 
lations of  the  States  and  work  their  entire  de- 
struction. 

"c.  That  inasmuch  as  the  state  law  authorized 
the  guardian  to  receive  the  pension  money,  the 
defendant  cannot  be  subjected  to  an  indictment 
under  an  Act  of  Congress  for  embezzling  it  after 
he  lawfully  received  it. 

"d.  That  matters  of  police  regulation  are  not 
surrendered  to  Congress,  but  are  exclusively 
within  state  legislation. 

"e.  That  a  guardian  is  a  state  officer,  and  as 
such  is  not  subject  to  the  laws  of  Congress  in  the 
performance  of  his  duties." 


240  LIABILITY   OF   RAILROADS 

But  the  Supreme  Court,  Mr.  Justice  Clifford 
delivering  the  opinion,  said:  "It  is  competent  for 
Congress  to  enforce  by  suitable  penalties  all  legis- 
lation necessary  or  proper  to  the  execution  of  power 
with  which  it  is  intrusted.  ..." 

To  be  sure,  the  provision  referred  to  in  the  Hall 
Case  just  cited  referred  specifically  to  the  distribu- 
tion of  the  nation's  own  bounty,  and  arose  from 
the  power  under  the  Constitution  to  raise  armies 
and  declare  war.  But  the  federal  legislative  power 
is  not  to  be  measured  differently  when  in  exercise 
of  the  war  power  than  when  it  arises  under  the 
commerce  clause. 

The  legislative  power  may  provide  for  the  pro- 
tection of  beneficiaries  when  a  fund  arises  under 
a  federal  right  as  fully  as  when  it  arises  from  a 
federal  appropriation. 

It  is  also  to  be  noted  that  the  court  in  the  Hall 
Case  said  that  "The  word  'guardian,'  as  used  in 
the  Act  of  Congress,  is  merely  the  designation  of 
the  person  to  whom  the  money  granted  may  be 
paid  for  the  use  and  benefit  of  the  pensioners." 

A  similar  interpretation  may  be  given  to  the 
words  "personal  representatives"  in  the  Act  now 
under  consideration.  Indeed  this  is  the  construc- 
tion given  under  the  Workmen's  Compensation 
Act  in  England.  "If  there  is  to  be  an  executor 
or  administrator,  the  whole  sum  awarded  must 
be  paid  to  him.     He  does  not,  however,  receive  it 


TO   INTERSTATE  EMPLOYEES  241 

as  personal  representative  of  the  deceased  workman, 
nor  is  it  part  of  the  workman's  estate,  or  liable  for 
his  debts.  He  holds  it  as  a  trustee  under  the  statute." 
(Note  to  1  Minton-Senhouse's  Workmen's  Com- 
pensation Cases,  page  149.) 

As  the  fund  is  no  part  of  the  estate  of  the  de- 
ceased workman,  but  is  a  fund  which  arises  solely 
from  the  federal  law,  there  is  no  applicability  of 
state  laws  as  to  the  devolution  of  such  estate. 

When  Congress  has  acted  upon  a  matter  within 
the  scope  of  its  power,  all  state  legislation  which 
in  any  manner  conflicts  with  it  must  give  way. 
It  is  inconceivable  that  the  power  of  Congress  to 
create  a  fund  for  the  benefit  of  the  widows  and 
orphans  of  railroad  employees,  and  to  determine 
the  beneficiaries  of  this  fund,  or  to  make  the  per- 
sonal representative  a  trustee  for  its  distribution 
in  the  manner  set  forth  in  the  statute,  is  in  any 
manner  impaired  or  affected  by  the  laws  of  a  state 
governing  the  distribution  of  the  estate  of  the 
deceased. 

As  held  by  the  Supreme  Court  of  the  United 
States  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Hcfley,  158  U.  S. 
98,  15  Sup.  Ct.  Rep.  802:  "When  a  state  statute 
and  a  federal  statute  operate  upon  the  same  sub- 
ject-matter, and  prescribe  different  rules  concern- 
ing it,  the  state  statute  must  give  way." 

But  here  there  is  no  real  conflict.  The  estate  of 
deceased  is  administered  according  to  state  law. 


242  LIABILITY  OF  RAILROADS 

The  fund  arising  from  the  federal  statute  is  dis- 
tributed in  accordance  with  the  terms  of  that 
statute.  If  in  order  to  sustain  the  constitution- 
ality of  the  Act,  it  were  necessary  to  give  to 
the  term  "personal  representative"  a  significance 
other  than  its  strictly  technical  meaning  as  execu- 
tor or  administrator,  such  meaning  might  be  given 
to  it  without  violence  to  the  terms.  For  a  case 
where  in  an  act  of  Congress  the  term  "personal 
representatives"  was  interpreted  to  mean  "heirs," 
see  Emerson  v.  Hall,  13  Peters,  409.  Although  this 
also  was  a  case  of  the  granting  of  a  gratuity  or  a 
donation  by  the  Government  itself  upon  grounds 
of  public  policy  within  its  admitted  powers, 
there  does  not  seem  to  be  much  doubt  that  the 
same  rule  would  be  applicable  where  a  new  federal 
right  is  created  upon  grounds  of  public  policy, 
and  that  such  federal  right  is  wholly  within  the 
regulation  of  Congress  as  to  its  terms  and  con- 
ditions, and  as  to  the  class  who  shall  be  benefi- 
ciaries. 

The  subject-matter  being  within  its  regulative 
power,  legislative  authority  as  to  all  details  exists 
in  Congress  without  limitations  other  than  those 
existing  in  the  Constitution,  and  under  such  cir- 
cumstances its  discretion  as  to  the  public  policy 
involved  is  unlimited  and  uncontrolled  by  the 
laws  or  policy  of  the  States. 


TO   INTERSTATE   EMPLOYEES  243 

§  62.    Railroad  Held  to  Liability  of  Insurer. 

The  opinion  in  the  Hoxie  Case  suggests  as 
objections  to  the  constitutionality  of  the  Act  a 
number  of  hypothetical  cases  illustrative  of  pos- 
sible applications  of  the  statute.  A  review  of 
these  illustrations  will  not  now  be  made,  but  it 
is  believed  that  they  have  been  fully  answered  in 
the  discussion  of  "the  Causal  Relation  between 
Employment  and  Injury"  on  page  96,  ante. 

Another  objection  raised  by  the  court  in  the 
Hoxie  Case  is  stated  as  follows:  "It  serves  to 
confirm  this  conclusion  [that  the  Act  is  unconsti- 
tutional] that  the  liability  thrown  upon  the 
carrier  by  section  1  is  not  confined  to  damages 
resulting  solely  from  the  negligence  of  its 
officers,  agents,  or  employees.  It  is  fixed  and 
complete  if  such  negligence  contribute  in  any  de- 
gree to  the  injury,  although  it  be  partly  due  to  the 
act  or  omission  of  a  mere  stranger.  There  can  be 
no  contribution  between  wrongdoers.  If,  there- 
fore, the  carrier  in  such  case  could  be  held 
under  the  statute,  his  property  would  be  taken 
to  pay  for  wrong,  mainly,  perhaps,  done  by 
one  with  whom  it  stood  in  no  contractual  re- 
lations, and  who,  except  for  this  particular  Act, 
had  no  connection  with  commerce  between  the 
States." 

This  objection  is  based  upon  the  doctrine  that 
there  can  be  no  contribution  between  wrongdoers. 


244  LIABILITY   OF  RAILROADS 

But  "wrongdoer"  in  the  sense  in  which  it  is 
used  in  the  rule  of  law  quoted  by  the  court  means 
one  who  is  guilty  of  an  act  malum  in  se.  This 
rule  has  no  application  to  the  ordinary  questions 
of  negligence.  The  rule  has  been  well  stated  to 
be  that  "where  the  offense  is  merely  malum  pro- 
hibitum, and  is  in  no  respect  immoral,  it  is  not 
against  the  policy  of  the  law  to  inquire  into  the 
relative  delinquency  of  the  parties,  and  to  ad- 
minister justice  between  them,  although  both 
parties  are  wrongdoers."  Smith,  Master  and 
Servant,  5th  ed.,  195,  citing  Lowell  v.  Boston  & 
Lowell  Railroad  Corporation,  23  Pickering  33. 

Railroad  accidents  seldom  occur  as  the  result 
of  an  act  malum  in  se. 

They  are  rarely  the  result  of  an  intentional 
wrongful  act.  They  are  almost  without  exception 
the  result  of  some  unintentional  disregard  of 
orders  resulting  from  forgetfulness,  or  by  some 
lapse  of  care  for  which  the  law  has  no  higher 
characterization  than  "negligence."  It  is  almost 
impossible  to  conceive  of  an  accident  to  a  railroad 
man  in  which  it  would  be  possible  to  charge  his 
employer  with  culpable  moral  wrong  within  the 
meaning  of  the  term  malum  in  se. 

In  any  case  not  involving  such  moral  wrong  the 
right  of  contribution  is  left  to  the  employer  to 
enable  him  to  recover  from  any  third  party  whose 
act  or  negligence  aided  in  producing  the  injury 


TO   INTERSTATE   EMPLOYEES  245 

for  which  he  is  held  to  be  primarily  liable  in  an 
action  brought  under  the  Act. 

A  statute  of  Nebraska  open  to  all  the  objections 
as  to  a  passenger  which  the  Connecticut  court 
here  urges  as  to  an  employee,  namely,  that  the 
railroad  could  be  held  to  liability  as  an  insurer 
for  injury  resulting  where  it  was  in  no  degree 
proved  to  be  in  fault,  was  expressly  upheld  by 
the  Supreme '  Court  of  the  United  States  in  the 
case  of  Chicago,  R.  I  &  P.  Ry.  Co.  v.  Zernecke,  183 
U.  S.  582,  22  Sup.  Ct.  Rep.  229. 

§  63.    Jurisdiction  of  State  Courts. 

In  the  course  of  the  opinion  in  the  Hoxie  Case 
it  was  said:  "If  it  be  assumed  that  Congress  has 
power  to  prescribe  a  different  rule  for  accidents 
occurring  in  or  outside  of  Connecticut  in  the  course 
of  running  a  railroad  train  between  States,  and  to 
create  a  new  statutory  action  for  its  enforcement 
cognizable  by  the  courts  of  the  United  States,  it 
can  not,  in  our  opinion,  require  such  an  action  to 
be  entertained  by  the  courts  of  this  State." 

From  the  foundation  of  the  government  up 
to  the  present  time  it  has,  by  the  universal 
practice  of  all  courts,  been  considered  without 
very  serious  question  that  federal  statutes  are 
enforceable  in  state  courts,  both  as  a  cause  of 
action  for  a  plaintiff  and  as  a  matter  of  substan- 
tive  defense  for   a  party   sued    in   such   courts. 


246  LIABILITY   OF   RAILROADS 

Chancellor  Kent,  in  his  Commentaries  (1  Kent's 
Com.  400),  says:  "In  judicial  matters  the  concur- 
rent jurisdiction  of  the  state  tribunals  depends 
altogether  upon  the  pleasure  of  Congress,  and  may 
be  revoked  and  extinguished  whenever  they  think 
proper,  in  every  case  in  which  the  subject-matter 
can  constitutionally  be  made  cognizable  in  the 
federal  courts;  and  that,  without  an  express  pro- 
vision to  the  contrary,  the  state  courts  will  retain  a 
concurrent  jurisdiction  in  all  cases  where  they  had 
jurisdiction  originally  over  the  subject-matter." 

Pomeroy,  "Introduction  to  the  Constitutional 
Law  of  the  United  States,"  9th  ed.,  page  621, 
§  743,  says:  "  Strip  the  national  government  of 
an  authority  to  apply  a  sanction  commensurate 
with  its  power  to  legislate,  and  just  so  far  we 
subtract  from  that  legislation  the  necessary  ele- 
ment of  a  command.  Strip  the  government  of  the 
ability  to  make  that  sanction  supreme,  and  we 
equally  invalidate  the  authority  of  the  legislative 
utterance.  This  attribute  of  supremacy  would 
be  destroyed  by  permitting  the  state  courts,  for 
example,  to  decide  upon  the  effect  of  national 
laws,  and  by  making  their  decisions,  in  the  par- 
ticular State  where  made,  of  an  equal  authority 
with  those  pronounced  upon  the  same  subject  by 
the  national  judges.  This  difficulty  thus  to  be 
.•ipprehendcd  from  the  action  of  state  tribunals 
could  only  be  prevented  in  one  of  two  ways:  either 


TO   INTERSTATE   EMPLOYEES  247 

by  removing  from  them  the  power  to  decide  at 
all  upon  rights  and  duties  which  spring  from  the 
national  legislation,  and  conferring  the  function 
exclusively  upon  the  United  States  courts;  or  by 
permitting  the  state  judiciary  to  exercise  a  juris- 
diction in  such  cases,  but  making  that  jurisdiction 
subordinate  to  the  authority  of  the  national 
courts,  and  rendering  the  local  decisions  reviewable 
by  the  United  States  judges,  who  could  in  this 
manner  enforce  their  attribute  of  supremacy  in 
relation  to  the  matters  under  consideration.  In 
theory  the  former  of  these  plans  would  have  been 
the  more  simple  and  perfect.  But  it  was  perhaps 
best,  from  some  motives  of  expediency,  that  the 
Constitution  should  not  expressly  determine  be- 
tween these  two  methods,  but  should  clothe  Con- 
gress with  the  power  of  making  such  a  choice  of 
the  alternatives  as  should  be  found  to  promote 
the  convenience  of  the  people.  Congress  possesses 
such  an  authority;  it  might  make  all  this  juris- 
diction exclusive  in  the  national  courts,  but  has 
done  so  only  in  particular  cases;  it  might  suffer 
the  state  tribunals  to  exercise  a  complete  concur- 
rent power,  subject  to  an  equally  complete  lia- 
bility to  review,  but  has  done  so  only  to  a  limited 
extent.  Whether  Congress  shall  adopt  one  or 
the  other  alternative  is  a  mere  question  of  policy; 
it  may  do  either." 

The  Supreme  Court  of  the  United  States  decided 


248  LIABILITY  OF  RAILROADS 

in  the  case  of  Teal  v.  Felton,  12  Howard  284,  that 
a  state  court  had  jurisdiction  to  try  an  action 
brought  against  a  postmaster  who  refused  to 
deliver  a  newspaper  on  which  there  was  "an 
initial,"  unless  the  addressee  would  pay  letter 
postage,  the  action  being  founded  on  sections  13 
and  30  of  the  Act  of  Congress  passed  in  1825, 
forbidding  a  writing  or  memorandum  on  a  news- 
paper or  other  printed  matter,  pamphlet,  or 
magazine  transmitted  by  mail.  The  Court  said, 
page  292,  Mr.  Justice  Wayne  delivering  the  opin- 
ion: "But  it  is  said  that  the  courts  of  New  York 
had  not  jurisdiction  to  try  the  case.  The  objec- 
tion may  be  better  answered  by  reference  to  the 
laws  of  the  United  States  in  respect  to  the  ser- 
vices to  be  rendered  in  the  transmission  of  letters 
and  newspapers  by  mail,  and  by  the  Constitution 
of  the  United  States,  than  it  can  by  any  general 
reasoning  upon  the  concurrent  civil  jurisdiction 
of  the  courts  of  the  United  States  and  the  courts  of 
the  States,  or  concerning  the  exclusive  jurisdiction 
given  by  the  Constitution  to  the  former. 

"  The  United  States  undertakes,  at  fixed  rates  of 
postage,  to  convey  letters  and  newspapers  for  those 
to  whom  they  are  directed,  and  the  postage  may 
be  prepaid  by  the  sender,  or  be  paid  when  either 
reach  their  destination  by  the  person  to  whom  they 
are  addressed.  When  tendered  by  the  latter  or 
by  his  agent,  he  has  the  right  to  the  immediate 


TO   INTERSTATE   EMPLOYEES  249 

possession  of  them,  though  he  has  not  had  before 
the  actual  possession.  If  then  they  be  wrongfully 
withheld  for  the  charge  of  unlawful  postage,  it  is  a 
conversion  for  which  suit  may  be  brought.  His 
right  to  sue  existing,  he  may  sue  in  any  court  hav- 
ing civil  jurisdiction  of  such  a  case,  unless  for  some 
cause  the  suit  brought  is  an  exception  to  the  general 
jurisdiction  of  the  court.  Now,  the  courts  of  New 
York  having  jurisdiction  in  trover,  the  case  in 
hand  can  only  be  excepted  from  it  by  such  a  case 
as  this  having  been  made  one  of  exclusive  juris- 
diction in  the  courts  of  the  United  States,  by  the 
Constitution  of  the  United  States.  That  such  is 
not  the  case  we  cannot  express  our  view  better 
than  Mr.  Justice  Wright  has  done  in  his  opinion 
in  this  case  in  the  Court  of  Appeals.  After  citing 
the  second  section  of  the  third  article  of  the  Con- 
stitution he  adds:  'This  is  a  mere  grant  of  juris- 
diction to  the  federal  courts,  and  limits  the  extent 
of  their  power,  but  without  words  of  exclusion  or 
any  attempt  to  oust  the  state  courts  of  concurrent 
jurisdiction  in  any  of  the  specified  cases  in  which 
concurrent  jurisdiction  existed  prior  to  the  adop- 
tion of  the  Constitution.  The  apparent  object  was 
not  to  curtail  the  powers  of  the  state  courts,  but 
to  define  the  limits  of  those  granted  to  the  federal 
judiciary.'  We  will  add,  that  the  legislation  of 
Congress,  immediately  after  the  Constitution  was 
carried  into  operation,  confirms  the  conclusion  of 


250  LIABILITY  OF   RAILROADS 

the  learned  judge.  We  find  in  the  25th  section  of 
the  Judiciary  Act  of  1789,  under  which  this  case 
is  before  us,  that  such  a  concurrent  jurisdiction  in 
the  courts  of  the  States  and  of  the  United  States 
was  contemplated,  for  its  first  provision  is  for  a 
review  of  cases  adjudicated  in  the  former,  '  where 
is  drawn  in  question  the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  their 
validity.'  " 

In  the  case  of  The  Moses  Taylor,  4  Wall. 
411,  429,  the  Court  said:  "  The  Judiciary  Act 
of  1789,  in  its  distribution  of  jurisdiction  to  the 
several  federal  courts,  recognizes  and  is  framed 
upon  the  theory  that  in  all  cases-  to  which  the 
judicial  power  of  the  United  States  extends,  Con- 
gress may  rightfully  vest  exclusive  jurisdiction  in 
the  federal  courts.  It  declares  that  in  some  cases, 
from  their  commencement,  such  jurisdiction  shall 
be  exclusive;  in  other  cases  it  determines  at  what 
stage  of  procedure  such  jurisdiction  shall  attach, 
and  how  long  and  how  far  concurrent  juris- 
diction of  the  state  courts  shall  be  permitted. 
Thus,  cases  in  which  the  United  States  are 
parties,  civil  causes  of  admiralty  and  maritime 
jurisdiction,  and  cases  against  consuls  and  vice- 
consuls,  except  for  certain  offenses,  are  placed, 
from  their  commencement,  exclusively  under  the 
cognizance  of  the  federal  courts.     On  the  other 


TO   INTERSTATE   EMPLOYEES  251 

hand,  some  cases,  in  which  an  alien  or  a  citizen  of 
another  State  is  made  a  party,  may  be  brought 
either  in  a  federal  or  a  state  court,  at  the  option 
of  the  plaintiff;  and  if  brought  in  the  state  court 
may  be  prosecuted  until  the  appearance  of  the  de- 
fendant, and  then,  at  his  option,  may  be  suffered 
to  remain  there,  or  may  be  transferred  to  the  ju- 
risdiction of  the  federal  courts.  Other  cases,  not 
included  under  these  heads,  but  involving  ques- 
tions under  the  Constitution,  laws,  treaties,  or 
authority  of  the  United  States,  are  only  drawn 
within  the  control  of  the  federal  courts  upon  ap- 
peal or  writ  of  error,  after  final  judgment.  By 
subsequent  legislation  of  Congress,  and  particu- 
larly by  the  legislation  of  the  last  four  years, 
many  of  the  cases,  which  by  the  Judiciary  Act 
could  only  come  under  the  cognizance  of  the  fed- 
eral courts  after  final  judgment  in  the  state  courts, 
may  be  withdrawn  from  the  concurrent  jurisdic- 
tion of  the  latter  courts  at  earlier  stages,  upon 
the  application  of  the  defendant.  The  constitu- 
tionality of  these  provisions  cannot  be  seriously 
questioned,  and  is  of  frequent  recognition  by  both 
state  and  federal  courts." 

It  is  difficult  to  understand  why  the  Connecti- 
cut court  cites  the  case  of  Claflin  v.  Houseman, 
93  U.  S.  130,  136,  as  authority  for  its  position  in 
the  Hoxie  Case,  for  a  careful  consideration  of  the 
opinion   of   Mr.   Justice   Bradley   in   the   Claflin 


252  LIABILITY   OF   RAILROADS 

Case  shows  conclusively  that  the  opinion  affords 
no  basis  for  the  contention  that  the  state  court 
is  not  authorized  and  required  to  enforce  federal 
statutes.  In  this  opinion  Mr.  Justice  Bradley 
said:  "The  general  question  whether  state 
courts  can  exercise  concurrent  jurisdiction  with 
the  federal  courts  in  cases  arising  under  the 
Constitution,  laws,  and  treaties  of  the  United 
States  has  been  elaborately  discussed  both  on 
the  bench  and  in  published  treatises,  sometimes 
with  a  leaning  in  one  direction  and  sometimes 
in  the  other;  but  the  result  of  these  discussions 
has,  in  our  judgment,  been,  as  seen  in  the  above 
cases,  to  affirm  the  jurisdiction,  where  it  is  not- 
excluded  by  express  provision  or  by  incompati- 
bility in  its  exercise  arising  from  the  nature  of 
the  particular  case. 

"When  we  consider  the  structure  and  true  rela- 
tions of  the  federal  and  state  governments  there  is 
really  no  just  foundation  for  excluding  the  state 
courts  from  all  such  jurisdiction. 

"The  laws  of  the  United  States  are  laws  in 
the  several  States,  and  just  as  much  binding 
on  the  citizens  and  courts  thereof  as  the  state 
laws  are. 

"The  United  States  is  not  a  foreign  sovereignty, 
as  regards  the  several  States,  but  is  a  concurrent 
and,  within  its  jurisdiction,  paramount  sovereignty. 
Every  citizen  of  a  State  is  a  subject  of  two  distinct 


TO   INTERSTATE   EMPLOYEES  253 

sovereignties,  having  concurrent  jurisdiction  in 
the  State,  —  concurrent  as  to  place  and  persons, 
though  distinct  as  to  subject-matter.  Legal  or 
equitable  rights,  acquired  under  either  system  of 
laws,  may  be  enforced  in  any  court  of  either  sov- 
ereignty competent  to  hear  and  determine  such 
kind  of  rights  and  not  restrained  by  its  constitu- 
tion in  the  exercise  of  such  jurisdiction.  Thus  a 
legal  or  equitable  right  acquired  under  state  laws 
may  be  prosecuted  in  the  state  courts,  and  also,  if 
the  parties  reside  in  different  States,  in  the  fed- 
eral courts. 

"So  rights,  whether  legal  or  equitable,  acquired 
under  the  laws  of  the  United  States  may  be  prose- 
cuted in  the  United  States  courts,  or  in  the  state 
courts  competent  to  decide  rights  of  the  like  char- 
acter and  class;  subject,  however,  to  this  quali- 
fication, that  where  a  right  arises  under  a  law  of  the 
United  States,  Congress  may,  if  it  see  fit,  give  to 
the  federal  courts  exclusive  jurisdiction. 

"See  remarks  of  Mr.  Justice  Field  in  The 
Moses  Taylor,  4  Wall.  429,  and  Story,  J.,  in  Martin 
v.  Hunter  Lessee,  1  Wheat.  334,  and  Mr.  Justice 
Swayne  in  Ex   parte  McNeil,  13  Wall.  236. 

"This  jurisdiction  is  sometimes  exclusive  by  ex- 
press enactment  and  sometimes  by  implication. 

"  If  an  Act  of  Congress  gives  a  penalty  to  a  party 
aggrieved,  without  specifying  a  remedy  for  its  en- 
forcement, there  is  no  reason  why  it  should  not  be 


254  LIABILITY  OF  RAILROADS 

enforced,  if  not  provided  otherwise  by  some  Act  of 
Congress,  by  a  proper  action  in  a  state  court. 

"The  fact  that  a  state  court  derives  its  exist- 
ence and  functions  from  the  state  laws  is  no 
reason  why  it  should  not  afford  relief ;  because  it  is 
subject  also  to  the  laws  of  the  United  States,  and 
is  just  as  much  bound  to  recognize  these  as  opera- 
tive within  the  State  as  it  is  to  recognize  the  State 
laws.  The  two  together  form  one  system  of  juris- 
prudence which  constitutes  the  law  of  the  land  for 
the  State;  and  the  courts  of  the  two  jurisdictions 
are  not  foreign  to  each  other,  nor  to  be  treated 
by  each  other  as  such,  but  as  courts  of  the  same 
country,  having  jurisdiction  partly  different  and 
partly  concurrent. 

"The  disposition  to  regard  the  laws  of  the  United 
States  as  emanating  from  a  foreign  jurisdiction  is 
founded  on  erroneous  views  of  the  nature  and  re- 
lations of  the  state  and  federal  governments. 

"It  is  often  the  cause  or  the  consequence  of  an 
unjustifiable  jealousy  of  the  United  States  gov- 
ernment, which  has  been  the  occasion  of  disastrous 
evils  to  the  country. 

"It  is  true,  the  sovereignties  are  distinct,  and 
neither  can  interfere  with  the  proper  jurisdiction 
of  the  other,  as  was  so  clearly  shown  by  Chief 
Justice  Taney  in  the  case  of  Ableman  v.  Booth, 
21  How.  506,  and  hence  state  courts  have  ho 
power  to  revise  the  action  of  the  federal  courts, 


TO   INTERSTATE   EMPLOYEES  255 

nor  the  federal  the  state,  except  where  the  fed- 
eral Constitution  or  laws  are  involved.  But  this 
is  no  reason  why  state  courts  should  not  be  open 
for  the  prosecution  of  rights  growing  out  of  the 
laws  of  the  United  States,  to  which  their  juris- 
diction is  competent,  and  not  denied." 

In  Ex  parte  Siebold,  100  U.  S.  371,  the  Court 
said:  "The  power  of  Congress,  as  we  have  seen,  is 
paramount,  and  may  be  exercised  at  any  time  and 
to  any  extent  which  it  deems  expedient;  and  so 
far  as  it  is  exercised  and  no  further  the  regula- 
tions effected  supersede  those  of  the  State  which 
are  inconsistent  therewith. 

"As  a  general  rule,  it  is  no  doubt  expedient  and 
wise  that  the  operations  of  the  state  and  national 
governments  should,  as  far  as  practicable,  be  con- 
ducted separately,  in  order  to  avoid  undue  jeal- 
ousies and  jars  and  conflicts  of  jurisdiction  and 
power.  But  there  is  no  reason  for  laying  this 
down  as  a  rule  of  universal  application.  It  should 
never  be  made  to  override  the  plain  and  manifest 
dictates  of  the  Constitution  itself. 

"  We  cannot  yield  to  such  a  transcendental  view 
of  state  sovereignty.  The  Constitution  and  laws 
of  the  United  States  are  the  supreme  law  of  the 
land,  and  to  these  every  citizen  of  every  State  owes 
obedience,  whether  in  his  individual  or  official 
capacity. 

"There  are  very  few  subjects,  it  is  true,  in  which 


256  LIABILITY  OF  RAILROADS 

our  system  of  government,  complicated  as  it  is, 
requires  or  gives  room  for  conjoint  action  between 
the  state  and  national  sovereignties.  Generally 
the  powers  given  by  the  Constitution  to  the  gov- 
ernment of  the  United  States  are  given  over 
distinct  branches  of  sovereignty  from  which  the 
state  governments,  either  expressly  or  by  neces- 
sary implication,  are  excluded. 

"But  in  this  case  expressly,  and  in  some  others 
by  implication,  as  we  have  seen  in  the  case  of  pilot- 
age, a  concurrent  jurisdiction  is  contemplated; 
that  of  the  State,  however,  being  subordinate  to 
that  of  the  United  States,  whereby  all  question  of 
precedency  is  eliminated." 

If  a  federal  right  cannot  be  the  basis  of  a  plain- 
tiff's claim  in  a  state  court;  if  those  courts  derive 
their  power  and  authority  and  compensation  from 
the  States  for  the  purpose  of  deciding  only  con- 
troversies arising  under  the  law  of  the  State, 
written  and  unwritten,  —  then  a  defense  based 
upon  a  federal  right  would  be  equally  unenforce- 
able in  said  courts.  If  they  refuse  to  try  federal 
questions  for  a  plaintiff  because  they  are  without 
jurisdiction,  how  can  they  consent  to  try  a  federal 
question  when  asserted  as  a  ground  of  defense  by 
the  party  proceeded  against? 

The  frequent  exercise  of  the  power  of  removal 
to  the  federal  court,  from  1789  down  to  the  present 
day,  of  cases  from  the  state  courts  to  the  federal 


TO   INTERSTATE   EMPLOYEES  2.17 

courts,  because  such  cases  involve  federal  questions, 
clearly  indicates  that  the  parties  to  such  causes  in 
the  state  courts  before  whom  such  cases  were 
pending  all  considered  that  such  actions  were  not 
demurrable  because  based  on  a  federal  right;  that 
the  fact  that  the  federal  right  was  involved  was  not 
a  defense,  but  merely  a  cause  for  removal.  If,  in 
those  cases  where  defendants  have  secured  the 
removal  of  causes  pending  in  State  courts  involv- 
ing a  federal  right,  they  had  an  absolute  defense 
upon  the  ground  that  the  State  court  was  not 
required  to  try  the  federal  question,  it  is  remark- 
able that  such  claim  was  not  asserted  as  a  de- 
fense, but  was  merely  used  as  a  basis  for  removal 
under  a  federal  statute. 

If  a  state  court  may  decline  jurisdiction  of  a 
case  involving  a  federal  right,  it  may,  by  a  parity 
of  reasoning,  decline  to  hear  a  case  arising  under 
the  laws  of  a  sister  State,  yet  the  comity  between 
States  has  always  recognized  the  rights  of  a  party 
when  the  parties  to  the  cause  were  otherwise 
within  the  jurisdiction  of  a  state  court,  to  base 
his  right  to  recover  under  the  laws  of  a  sister 
State  or  of  a  foreign  nation.  Connecticut  now 
refuses  comity  to  the  federal  power  which  would 
be  and  is  usually  and  without  cavil  extended  to 
foreign  powers.  If  it  were  a  mere  matter  of  comity, 
the  States,  in  deference  to  the  practice  in  the  fed- 
eral courts,  whenever  consistent,  to  entertain  juris- 


258  LIABILITY   OF   RAILROADS 

diction  of  matters  arising  under  state  statutes, 
should  recognize  and  enforce  in  their  respective 
courts,  whenever  consistent,  matters  and  rights 
accruing   under   the   federal   law. 

"The  Constitution  and  the  laws  of  Congress 
passed  in  pursuance  thereof  are  the  supreme  law 
of  the  land."  But  it  would  not  be  supreme  if  any- 
right  given  by  it  could  be  overridden,  either  by 
state  enactment  or  by  judicial  decision. 

In  Higgins  v.  Central  New  England  and  W.  R. 
Co.,  155  Mass.  176,  180,  the  Supreme  Judicial 
Court  of  Massachusetts,  after  referring  to  transi- 
tory causes  of  action  which  did  not  exist  at  com- 
mon law,  but  which  were  created  by  the  statute  of 
another  State,  and  passed  to  the  administrator  of 
the  deceased,  said:  "When  an  action  is  brought 
upon  it  here  the  plaintiff  is  not  met  by  any  diffi- 
culty upon  these  points.  Whether  our  courts  will 
entertain  it  depends  upon  the  general  principles 
which  are  to  be  applied  in  determining  the  question 
whether  actions  founded  upon  the  laws  of  other 
States  shall  be  heard  here.  These  principles  re- 
quire that,  in  case  of  other  than  penal  actions,  the 
foreign  law,  if  not  contrary  to  our  public  policy  or 
to  abstract  justice  or  pure  morals,  or  calculated  to 
injure  the  State  or  its  citizens,  shall  be  recognized 
and  enforced  here,  if  we  have  jurisdiction  of  all 
necessary  parties,  and  if  we  can  see  that,  consist- 
ently with  our  own  forms  of  procedure  and  law  of 


TO   INTERSTATE  EMPLOYEES  259 

trials,  we  can  do  substantial  justice  between  the 
parties." 

This  is  the  rule  of  comity  usually  recognized  in 
the  application  of  foreign  law,  but  the  federal 
power  is  in  no  sense  foreign  to  the  States. 

As  was  said  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  Defiance  Water  Company  v. 
Defiance,  191  U.  S.  184,  24  Sup.  Ct.  Rep.  63, 
"Moreover,  the  state  courts  are  perfectly  com- 
petent to  decide  federal  questions  arising  before 
them,  and  it  is  their  duty  to  do  so,"  citing  Robb 
v.  Connolly,  111  U.  S.  624,  637,  4  Sup.  Ct.  Rep. 
544;  Missouri  Pacific  Ry.  Co.  v.  Fitzgerald,  160 
U.  S.  556,  583,  16  Sup.  Ct.  Rep.  389. 

As  was  said  by  Mr.  Justice  Shiras,  in  comment- 
ing upon  the  concurrent  jurisdictional  power  of 
the  state  and  federal  courts,  in  the  case  of  Murray 
v.  Chicago  &  N.  W.  Ry.  Co.,  62  Fed.  Rep.  24; 
"A  further  point  is  made  in  support  of  the  de- 
murrer, to  the  effect  that  this  court  succeeds  only 
to  the  jurisdiction  of  the  state  court  in  which  the 
action  was  originally  brought,  and  that  state 
courts  have  no  jurisdiction  over  cases  arising  out 
of  interstate  commerce,  the  argument  being  that, 
as  the  State  cannot  legislate  touching  interstate 
commerce,  the  state  courts  are  without  power  to 
determine  cases  of  the  like  character.  This  posi- 
tion is  not  well  taken.  The  limitations  upon  the 
legislative  power  of  the  nation  and  of  the  several 


260  LIABILITY   OF   RAILROADS 

States  do  not  necessarily  apply  to  the  judicial 
branches  of  the  national  and  state  governments. 
The  legislature  of  a  State  cannot  abrogate  or 
modify  any  of  the  provisions  of  the  federal  Con- 
stitution nor  of  the  Acts  of  Congress  touching 
matters  within  congressional  control,  but  the 
courts  of  the  State,  in  the  absence  of  a  prohibitory 
provision  in  the  federal  Constitution  or  Acts  of 
Congress,  have  full  jurisdiction  over  cases  arising 
under  the  Constitution  and  laws  of  the  United 
States.  The  courts  of  the  States  are  constantly 
called  upon  to  hear  and  decide  cases  arising  under 
the  federal  Constitution  and  laws,  just  as  the 
courts  of  the  United  States  are  called  upon  to 
hear  and  decide  cases  arising  under  the  law  of 
the  State,  when  the  adverse  parties  are  citizens 
of  different  States.  The  duty  of  the  courts  is  to 
explain,  apply,  and  enforce  the  existing  law  in 
the  particular  cases  brought  before  them.  If  the 
law  applicable  to  a  given  case  is  of  federal  origin, 
the  legislature  of  a  State  cannot  abrogate  or 
change  it,  but  the  courts  of  the  State  may  apply 
and  enforce  it;  and  hence  the  fact  that  a  given 
subject,  like  interstate  commerce,  is  beyond  state 
legislative  control,  does  not,  ipso  facto,  prevent  the 
courts  of  the  State  from  exercising  jurisdiction 
over  cases  which  grow  out  of  this  commerce.  Had 
this  action  remained  in  the  state  court  in  which 
it  was  originally  brought,  that  court  would  have 


( 

TO   INTERSTATE   EMPLOYEES  261 

had  jurisdiction  to  hear  and  determine  the  issues 
between  the  parties,  because  Congress  has  not 
enacted  that  jurisdiction  over  cases  of  this  char- 
acter is  confined  exclusively  to  the  courts  of  the 
United  States,  and  therefore  the  jurisdiction  of 
the  state  court  was  full  and  complete." 

In  the  case  of  Brown  v.  Walker,  161  U.  S.  591, 
606,  16  Sup.  Ct.  Rep.  644,  Mr.  Justice  Brown, 
delivering  the  opinion  of  the  majority  of  the 
court,  said:  "There  is  no  such  restriction,  how- 
ever, upon  the  applicability  of  federal  statutes. 
The  Sixth  Article  of  the  Constitution  declares 
that  '  This  Constitution,  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursu- 
ance thereof;  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land; 
and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  Constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding.' 

"The  language  of  this  article  is  so  direct  and 
explicit,  that  but  few  cases  have  arisen  where  this 
court  has  been  called  upon  to  interpret  it,  or  to 
determine  its  applicability  to  state  courts.  But, 
in  the  case  of  Stewart  v.  Kahn,  11  Wall.  493,  505, 
the  question  arose  whether  a  debt  contracted  by  a 
citizen  of  New  Orleans,  prior  to  the  breaking  out 
of  the  Rebellion,  was  subject  in  a  state  court  to 
the  statute  of  limitations  passed  by  Congress  June 


262  LIABILITY   OF   RAILROADS 

11,  1864,  declaring  that  as  to  actions  which  should 
accrue  during  the  existence  of  the  Rebellion,  against 
persons  who  could  not  be  served  with  process  by- 
reason  of  the  war,  the  time  when  such  persons  were 
beyond  the  reach  of  judicial  process  should  not  be 
taken  or  deemed  to  be  any  part  of  the  time  limited 
by  law  for  the  commencement  of  such  actions. 
The  court  held  unanimously  that  the  debt  was 
subject  to  this  Act,  and  in  delivering  the  opinion 
of  the  court  Mr.  Justice  Swayne  said :  '  But  it  has 
been  insisted  that  the  Act  of  1864  was  intended  to 
be  administered  only  in  the  federal  courts,  and 
that  it  has  no  application  to  cases  pending  in  the 
courts  of  the  State.  The  language  is  general. 
There  is  nothing  in  it  which  requires  or  will  war- 
rant so  narrow  a  construction.  It  lays  down  a 
rule  as  to  the  subject,  and  has  no  reference  to 
the  tribunals  by  which  it  is  to  be  applied.  A  dif- 
ferent interpretation  would  defeat,  to  a  large  ex- 
tent, the  object  of  its  enactment.  .  .  .  The  judi- 
cial anomaly  would  be  presented  of  one  rule  of 
property  in  the  federal  courts,  and  another  and  a 
different  one  in  the  courts  of  the  States,  and  debts 
could  be  recovered  in  the  former  which  would  be 
barred  in  the  latter.'  This  case  was  affirmed  in 
United  States  v.  Wiley,  11  Wall.  508;  and  in  May- 
field  v.  Richards,  115  U.  S.  137,  5  Sup.  Ct.  Rep. 
1187.  See  also  Mitchell  v.  Clark,  110  U.  S.  633,  4 
Sup.  Ct.  Rep.   170,  312.     The  same  principle  has 


TO  INTERSTATE  EMPLOYEES  263 

also  been  applied  in  a  number  of  cases  turning 
upon  the  effect  to  be  given  to  treaties  in  actions 
arising  in  the  state  courts.  Foster  v.  Neilson,  2 
Pet.  253;  The  Cherokee  Tobacco,  11  Wall.  616;  The 
Head  Money  Cases,  112  U.  S.  580,  5  Sup.  Ct.  Rep. 
247.  .  .  . 

"  The  Act  in  question  contains  no  suggestion 
that  it  is  to  be  applied  only  to  the  federal  courts. 
It  declares  broadly  that  '  no  person  shall  be  ex- 
cused from  attending  and  testifying  .  .  .  before 
the  Interstate  Commerce  Commission  ...  on  the 
ground  .  .  .  that  the  testimony  .  .  .  required 
of  him  may  tend  to  criminate  him,  etc.  But  no 
person  shall  be  prosecuted  or  subjected  to  any 
penalty  or  forfeiture  for  or  on  account  of  any 
transaction,  matter,  or  thing  concerning  which 
he  may  testify,  etc.'  It  is  not  that  he  shall  not 
be  prosecuted  for  or  on  account  of  any  crime  con- 
cerning which  he  may  testify,  which  might  pos- 
sibly be  urged  to  apply  only  to  crimes  under  the 
federal  law  and  not  to  crimes,  such  as  the  passing 
of  counterfeit  money,  etc.,  which  are  also  cogniz- 
able under  state  laws ;  but  the  immunity  extends 
to  any  transaction,  matter,  or  thing  concerning 
which  he  may  testify  which  clearly  indicates  that 
the  immunity  is  intended  to  be  general,  and  to  be 
applicable  whenever  and  in  whatever  court  such 
prosecution  may  be  had." 

In  the  case  of  Chesapeake  &  Ohio  Ry.  Co.  v. 


264  LIABILITY   OF   RAILROADS 

American  Exchange  Bank,  92  Va.  495,  23  S.  E. 
Rep.  935,  an  action  for  damages  on  account  of 
injury  to  a  shipment  of  live  stock  being  trans- 
ported over  the  defendant's  line  of  road,  the 
Court  said:  "Shearman  and  Redfield,  in  their 
work  on  Negligence,  say:  'The  violation  of  a 
statute  or  ordinance  regulating  the  speed  of 
vehicles,  horses,  or  trains,  or  requiring  special 
signals  or  warnings  to  be  given  upon  their  ap- 
proach, or  light  to  be  shown,  is  such  a  breach  of 
duty  as  may  be  made  the  foundation  of  an  action 
by  any  person  belonging  to  the  class  intended  to 
be  protected  by  such  a  regulation,  provided  he 
is  specially  injured  thereby.  The  violation  of 
a  statute  of  the  United  States  may  be  made 
the  basis  of  an  action  of  negligence  in  a  state 
court ' 

"We  have  no  doubt  that  one  of  the  objects  of 
section  4386  of  the  Revised  Statutes  of  the  United 
States  was  to  prevent  loss  to  the  owners  of  live 
stock  which  would  result  from  its  being  carried 
long  distances  by  common  carriers  without  food, 
water  and  rest.  The  plaintiff  belongs  to  the 
class  intended  to  be  protected  thereby,  and  has 
the  right  to  recover  from  the  defendant  the 
damages  which  were  caused,  if  any,  by  its  viola- 
tion of  the  statute,  and,  having  such  right,  he 
could  bring  his  action  in  the  state  court." 

In  the  case  of  Bradbury  v.  Chicago,  R.  I.  &  P. 


TO   INTERSTATE   EMPLOYEES  265 

Ry.  Co.,  (Iowa)  128  N.  W.  Rep.  1,  Mr.  Justice 
Ladd,  speaking  for  the  court,  said:  "The  matter 
of  jurisdiction  is  not  touched  in  the  Act  of  Con- 
gress, and  it  is  now  well  settled  that  state  courts 
may  exercise  concurrent  jurisdiction  with  the 
federal  courts  in  all  cases  arising  under  the  Con- 
stitution, laws  and  treaties  of  the  United  States, 
unless  exclusive  jurisdiction  has  been  conferred, 
expressly  or  by  necessary  implication,  on  the 
federal  courts.  Claflin  v.  Houseman,  93  U.  S. 
30;  Raisler  v.  Oliver,  97  Ala.  714,  12  So.  Rep. 
238;  Wilcox  v.  Luco,  118  Cal.  642,  45  Pac.  Rep. 
676,  50  Pac.  Rep.  758;  Schuyler  Nat' I  Bank  v. 
Bollong,  24  Neb.  827,  40  N.  W.  Rep.  414;  Bletz 
v.  Columbia  Nafl  Bank,  87  Pa.  St.  92;  Brincker- 
hoff  v.  Bostwick,  88  N.  Y.  60;  People  v.  Welch, 
141  N.  Y.  273.  .  .  . 

"An  illustration  of  the  exercise  of  exclusive 
jurisdiction  by  the  federal  courts  will  be  found  in 
Copp  v.  Louisville  &  N.  R.  Co.,  43  La.  Ann.  511, 
9  So.  Rep.  441,  where  a  plea  to  the  jurisdiction 
of  the  state  court  was  sustained  on  the  ground 
that  the  Act  of  Congress  on  which  the  action  for 
damages  was  based  directed  that  it  be  brought 
in  the  United  States  courts.  In  Hoxie  v.  New 
York,  N.  H.  &  H.  R.  Co.,  the  Supreme  Court  of 
Errors  of  Connecticut  reached  the  conclusion 
that,  by  fair  implication,  the  Act  of  Congress  ex- 
cludes jurisdiction  of  the  state  courts  and  in  any 


266  LIABILITY  OF   RAILROADS 

event  the  state  court  was  under  no  obligation  to 
enforce  the  rights  therein  created.  The  last  point 
appears  to  have  been  considered  as  though  in- 
volving a  question  of  comity  merely,  regardless 
of  the  convenience  and  propriety  of  enforcing 
all  rights  and  redressing  all  wrongs  within  the 
jurisdiction   of  the  local   courts. 

"The  prevailing  rule  is  that  where  a  cause  of 
action  accrues  by  virtue  of  the  statute  of  any 
State,  the  action  may  be  maintained  in  any  other 
State  if  not  contrary  to  the  public  policy  or  law 
of  the  place  where  the  suit  is  brought.  Boyce  v. 
Railway,  63  Iowa  70,  18  N.  W.  Rep.  673;  Morris 
v.  Railway,  65  Iowa  727,  23  N.  W.  Rep.  143. 
See  cases  collected  in  note  to  Reeves  v.  Railway, 
70  L.  R.  A.  513. 

"In  such  cases  the  law  of  the  place  where  the 
right  was  acquired  or  the  liability  incurred  will 
govern  as  to  the  right  of  action,  while  all  that 
pertains  merely  to  the  remedy  will  be  controlled 
by  the  law  of  the  State  where  the  action  is 
brought.  Herrick  v.  Railway,  31  Minn.  1,  16  N. 
W.  Rep.  413. 

"Even  where  the  cause  of  action  arises  in  a 
foreign  country,  suits  may  be  maintained  in  our 
courts  though  jurisdiction  can  be  declined,  but 
this  is  seldom  done  unless  from  fear  of  inability 
to  do  full  justice  through  lack  of  knowledge  of 
the  laws  of  the  place  where  the  cause  of  action 


TO   INTERSTATE   EMPLOYEES  267 

arose.  Mason  v.  The  Blaireau,  2  Cranch  240 
Roberts  v.  Dunsmuir,  75  Cal.  203,  16  Pac.  Rep.  782 
Great  Western  R.  Co.  v.  Miller,  19  Mich.  305 
Cofrode  v.  Gardner,  79  Mich.  332,  44  N.  W.  Rep. 
623;  Evey  v.  Railway,  81  Fed.  Rep.  294.  The 
reasons  which  induce  state  courts  to  exercise 
jurisdiction  of  causes  of  action  arising  in  a  for- 
eign country  or  under  legislation  of  another  State 
should  be  quite  as  persuasive  in  favor  of  assuming 
jurisdiction  over  causes  of  action  arising  under  the 
statutes  of  the  United  States,  with  this  in  addition, 
that  these  are  the  laws  of  the  very  people  the 
jurisdiction  of  whose  courts  is  invoked.  See  11 
Cyc.  996.  If  a  cause  of  action  has  become  fixed 
and  a  legal  liability  incurred,  the  doors  of  the 
courts  of  this  State  should  not  be  closed  to  the 
prosecution  of  such  cause  of  action,  regardless 
of  whether  the  same  may  have  arisen  under 
the  statutes  of  another  State,  an  Act  of  Congress, 
or  the  laws  of  a  foreign  country,  unless  to  en- 
force it  would  be  contrary  to  the  laws  or  public 
policy  of  the  State  or  complete  justice  probably 
could  not  be  done.  Unless  the  Act  of  Congress 
should  be  construed  to  confer  exclusive  juris- 
diction on  the  federal  courts,  or  the  mode  of 
procedure  is  such  that  the  state  courts  cannot 
safely  undertake  to  enforce  the  liability  defined, 
there  seems  no  ground  for  declining  to  exercise 
a  jurisdiction  fully  approved  by  the  authorities. 


268  LIABILITY  OF   RAILROADS 

The  statute  is  silent  concerning  jurisdiction,  but 
it  is  said  that  the  rules  of  practice  prescribed 
therein  and  the  direction  as  to  who  shall  be  the 
beneficiaries  thereunder  are  so  inconsistent  with 
the  state  laws  as  to  indicate  the  congressional 
intent  that  redress  may  be  had  in  the  federal 
courts  alone.  In  order  to  dispose  of  this  objec- 
tion it  will  be  necessary  to  set  out  the  main  pro- 
visions of  the-  Act.  [Citing  full  text  of  §§  1,3,  4 
and  6  of  the  Act  of  1908.  See  Appendix, 
pp.  319,  320  and  321.] 

"  It  is  manifest  from  the  mere  reading  that  this 
Act  effects  quite  as  important  a  change  in  the 
trial  of  such  causes  in  the  federal  courts  as  would 
be  possible  in  the  state  courts.  Thus  the  federal 
decisions  are  harmonious  on  the  proposition  that 
the  negligence  of  complainant  which  contributes 
proximately  to  the  injury  will  defeat  the  recovery 
of  damages  therefor.  So,  too,  in  the  absence  of 
local  statutes,  the  fellow-servant  doctrine  and  that 
of  assumption  of  risks  have  been  broadly  applied 
in  all  federal  courts.  Hereafter  all  of  these  rules 
are  to  be  modified  or  eliminated  where  the  in- 
juries are  such  as  contemplated  in  the  above  Act. 
If  inconvenience  and  confusion  would  result  from 
an  attempt  to  enforce  the  Acts  in  the  state  courts, 
like  consequences  will  be  the  outcome  of  a  similar 
undertaking  in  the  courts  of  the  United  States. 
Let  us  examine  the  several  sections  and  ascertain 


TO   INTERSTATE   EMPLOYEES  269 

the  alleged  inconsistencies  which  are  said  to  pre- 
clude the  maintenance  of  actions  based  thereon 
in  the  state  courts.  No  one,  we  apprehend, 
would  say  that  the  state  courts  are  not  compe- 
tent to  entertain  suits  by  the  persons  authorized 
by  section  1  to  recover  damages  or  to  distribute 
those  recovered  as  specified.  Under  the  statutes 
of  this  State  the  suit  is  prosecuted  in  the  name  of 
the  administrator,  where  death  is  alleged  to  have 
resulted  from  wrongful  act,  and  anything  re- 
covered distributed  as  personal  property  among 
the  heirs.  It  goes  to  the  surviving  spouse  and 
children,  if  any  there  are,  and  if  not,  to  the  parents 
of  the  deceased,  precisely  as  under  the  federal 
statute.  In  event  there  are  neither  spouse  and 
children,  nor  parents  of  deceased,  the  remoter 
heirs  are  entitled  thereto  under  the  State  statute, 
while  under  this  Act  the  damages  go  to  the  next 
of  kin  dependent  upon  deceased.  As  the  state 
statute  must  give  way  to  that  of  Congress,  no  in- 
consistency is  involved.  All  essential  is  that 
effect  be  given  to  the  latter  as  though  the  former 
were  not  on  the  statute  book.  Nor  can  it  be  said 
that  this  involves  an  interference  by  Congress 
with  the  distribution  of  an  estate  through  the 
probate  court  of  the  State.  The  cause  of  action 
was  created  by  Congress  in  the  exercise  of  its 
power  to  regulate  commerce  among  the  several 
States,  and  it  is  elementary  that  in  doing  so  it 


270  LIABILITY   OF   RAILROADS 

might  determine  who  was  entitled  to  maintain 
the  same  and  for  whose  benefit.  The  admin- 
istrator is  not  required  thereby  to  institute  pro- 
ceedings; he  may  do  so,  and  in  that  event  can 
recover  only  for  the  benefit  of  the  person  entitled 
under  the  Act  to  the  damages.  The  administrator 
therein  sustains  the  relation  to  the  beneficiaries 
like  that  of  trustee  to  his  cestui  que  trust,  and  it 
is  of  little  concern  whether  he  shall  distribute  the 
damages  recovered  in  pursuance  of  an  order  of 
the  court  wherein  recovered  or  in  the  appropriate 
probate  court.  Surely  no  court  would  permit  an 
administrator,  after  recovering  damages  under  a 
statute  specifically  prescribing  who  is  entitled 
thereto,  to  divert  the  money  elsewhere. 

"  It  must  be  borne  in  mind  that  this  Act  does 
not  relate  to  the  distribution  of  the  personal 
property  of  an  estate.  The  cause  of  action  does 
not  belong  to  the  estate  of  the  deceased  person, 
but  to  certain  classes  for  whose  benefit  the  admin- 
istrator is  authorized  to  recover  damages,  and  we 
see  no  ground  for  saying  this  is  contrary  to  our  law 
or  its  policy.  In  a  few  States,  notably  Connecti- 
cut, the  fellow-servant  doctrine  is  still  applied  in 
cases  of  injury  caused  in  the  use  and  operation 
of  railways,  and  it  seems  to  have  been  thought  in 
the  Hoxie  Case  that  for  a  state  court  to  apply 
that  doctrine  in  causes  based  on  injuries  received 
in  intrastate  commerce  and  to  proceed  in  actions 


TO  INTERSTATE   EMPLOYEES  271 

based  on  the  federal  statute  on  the  theory  that 
the  master  is  responsible  for  the  acts  of  the 
fellow-servant  would  create  confusion,  '  setting  up 
in  the  same  tribunal  different  standards  of  right 
and  policy  and  practice.'  More  than  fifty  years 
ago  the  fellow-servant  doctrine  was  eliminated  by 
the  legislature  of  this  State  wherever  the  injury 
was  occasioned  by  the  negligent  act  of  the  fellow- 
servant  engaged  in  the  use  and  operation  of  a 
railway,  and  though  that  doctrine  has  been  con- 
tinually applied  in  all  cases  involving  injuries 
suffered  in  other  employments,  little  difficulty 
has  been  experienced  in  discriminating  between 
situations  exacting  the  application  of  the  different 
rules.  Indeed,  the  situation  of  employees  en- 
gaged in  the  operation  of  railways  ordinarily  is 
such  that  they  can  exert  little  direct  or  personal 
influence  upon  each  other  in  discharging  their 
respective  duties,  and  their  opportunities  for 
guarding  against  the  negligent  acts  of  one  another 
are  so  limited  that  in  many  if  not  in  most  of  the 
states,  laws  have  been  enacted  declaring  the 
master  liable  for  the  negligent  acts  of  the  ser- 
vant when  engaged  in  the  use  and  operation  of 
railways,  even  though  the  injured  party  be  a 
fellow-servant. 

"  And  we  apprehend  that  the  design  of  Congress 
was  to  furnish  this  measure  of  protection  to  em- 
ployees engaged  in  interstate  commerce  in  those 


272  LIABILITY  OF  RAILROADS 

States  where,  for  reasons  such  as  are  suggested 
in  the  Hoxie  Case,  none  have  been  provided  by 
local  legislation.  Section  4  is  somewhat  similar 
to  a  statute  of  this  State  relating  to  assumption 
of  risks.  (Ch.  219  Acts  33rd  Gen.  Assem.) 
And  the  only  difficulty  in  entertaining  suits  for 
liability  under  the  Act  of  Congress,  as  it  seems  to 
us,  will  develop  in  the  construction  and  applica- 
tion of  section  3.  Under  the  decisions  of  this 
State  contributory  negligence,  if  the  proximate 
cause,  has  always  been  held  to  defeat  recovery. 
But  such  has  been  the  rule  in  the  federal  courts 
and,  as  said,  is  now,  save  as  modified  by  this  Act. 
No  greater  difficulty  will  confront  the  state 
courts  in  applying  this  or  other  sections  of  the  Act 
than  the  courts  of  the  United  States,  and  for  this 
reason  there  is  no  ground  for  inferring  from  the 
somewhat  radical  nature  of  the  Act  that  it  was 
the  intent  of  Congress  to  confer  exclusive  juris- 
diction on  the  federal  courts.  With  all  due  re- 
spect for  the  eminent  court  holding  otherwise  in 
the  Hoxie  Case,  we  are  not  persuaded  by  the 
reasoning  of  its  opinion.  Differences  between 
the  federal  and  local  courts  no  greater  than  those 
between  different  statutes  or  laws  of  the  same 
State  do  not  alone  justify  the  conclusion  that 
Congress  intended  to  deny  jurisdiction  of  the 
state  courts  nor  furnish  a  satisfactory  reason  for 
refusing  that   comity   due   to  sovereign  govern- 


TO  INTERSTATE   EMPLOYEES  273 

ment.  Nor  does  it  appear  to  have  convinced  the 
Congress,  for  an  Act  approved  April  5,  1910,  36 
Stat.  291,  declared  the  jurisdiction  of  the  United 
States  courts  under  this  Act  concurrent  with  that 
of  the  state  courts,  and  further  declared  that  'no 
case  arising  under  this  Act  and  brought  in  any- 
state  court  of  competent  jurisdiction  shall  be 
removed  to  any  court  of  the  United  States.'  " 
For  a  further  discussion  of  this  topic  see  Senate 
Report  No.  432,  61  Congress,  2  Session,  March 
22,  1910;  Owens  v.  Chicago  G.  W.  Ry.  Co.,  (Minn.) 
128  N.  W.  Rep.  1011;  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  v.  Hesterly,  (Ark.)  135  S.  W.  Rep.  874,  and 
cases  there  cited. 

§  64.  Justice  and  Policy  of  Fellow-Servant 
Rule. 

The  Hoxie  Case  refers  to  the  rule  that  a  servant 
cannot  recover  from  his  master  for  injuries  re- 
ceived from  the  negligence  of  a  fellow-servant 
acting  in  the  same  line  of  employment  as  a  "rule 
of  justice"  and  a  "rule  of  policy, "  and  as  "  resting 
upon  considerations  of  right  and  justice  that  have 
been  generally  accepted  by  the  people  of  the 
United  States." 

In  the  case  of  Burke  v.  Norwich  &  W.  R.  Com- 
pany, 34  Conn.  474,  479,  the  Court  said:  "The 
principle  relied  upon  by  the  defendants,  that  a 
master  is  not  liable  to  a  servant  for  an  injury  to 


274  LIABILITY  OF  RAILROADS 

him  occasioned  by  the  misconduct  or  negligence 
of  a  fellow-servant,  has  been  so  often  recog- 
nized both  in  this  country  and  in  England  that 
it  must  now  be  considered  as  settled  law.  Two 
reasons  are  usually  assigned  for  the  rule:  1st, 
That  the  employed  must  be  supposed  to  have 
contracted  with  reference  to  the  perils  of  the 
business,  including  those  which  may  arise  from 
the  character  and  conduct  of  his  fellow-employees ; 
and  2d,  That  public  policy  requires  that  each 
servant  should  be  influenced  by  its  operation 
to  be  not  only  careful  of  his  own  doings,  but 
as  watchful  as  possible  over  the  acts  of  his  asso- 
ciates. Farwell  v.  Boston  &  Worcester  R.  Company, 
4  Met.  49. 

"The  justness  of  this  reasoning  has  been  ques- 
tioned by  high  judicial  authority.  Little  Miami 
R.  Co.  v.  Stevens,  20  Ohio  435.  However 
plausible  may  be  the  theory,  it  is  very  doubtful 
whether,  in  fact,  a  spinner  in  a  factory  or  a  fire- 
man on  a  railroad  ever  made  an  examination  into 
the  condition  of  the  machinery,  the  mode  of  con- 
ducting the  business,  or  the  character  and  habits 
of  the  operative,  for  the  purpose  of  ascertaining 
the  extent  of  his  risk  as  an  element  in  calculating 
the  proper  amount  of  his  wages.  A  passenger  in 
a  railroad  car  may  well  be  presumed  to  have  a 
vivid  consciousness  of  his  risk,  but  it  has  never 
been  understood  that  he  contracts  with  reference 


TO  INTERSTATE  EMPLOYEES  275 

to  it  when  he  buys  his  ticket,  so  as  to  be  his  own 
insurer.  Again,  a  principal  is  responsible  to  an 
employee  for  his  own  negligence,  —  why  should 
he  not  be  liable  for  that  of  his  agent  over  whom 
the  employee  has  no  control,  and  of  whom  he 
may  have  no  knowledge. 

"With  respect  to  considerations  of  policy,  it 
is  by  no  means  certain  that  the  public  interests 
would  not  be  best  subserved  by  holding  the 
superior,  with  his  higher  intelligence,  his  surer 
means  of  information,  and  his  power  of  selecting, 
directing,  and  discharging  subordinates,  to  the 
strictest  accountability  for  their  misconduct  in 
his  service,  whoever  may  be  the  sufferer  from  it." 

Among  the  decisions  of  the  Supreme  Court  of 
Errors  of  Connecticut  may  be  found  strong  state- 
ments criticising  the  defense  of  common  employ- 
ment, and  completely  answering  the  suggestion 
in  the  Hoxie  Case,  that  the  rule  rests  upon  con- 
siderations of  justice  or  policy.  In  the  case  of 
Zeigler  v.  Danbury  &  Norwalk  Railroad  Company, 
52  Conn.  543,  556,  the  majority  of  the  court  says: 
"The  defense  of  common  employment  has  little 
of  reason  or  principle  to  support  it,  and  the  ten- 
dency in  nearly  all  jurisdictions  is  to  limit  rather 
than  enlarge  its  range.  It  must  be  conceded  that 
it  cannot  rest  on  reasons  drawn  from  consider- 
ations of  justice  or  of  public  policy." 


276  LIABILITY   OF  RAILROADS 


PART  III 

The  Safety  Appliance  Acts  l 

CHAPTER   XIV 
ABSOLUTE  mandatory  obligation  to  comply 

WITH    SAFETY    APPLIANCE    ACTS 

§  65.     Liability    of    Carriers    under   Act   is 
Absolute. 
The  relief  of  railroad  men  from  the  burden  of 
the  common-law  rules  was  begun  when  Senator 

1  The  following  is  a  list  of  actions  for  death  or  personal  injuries 
in  which  the  Safety  Appliance  Act  has  been  applied  or  construed : 
Briggs  v.  Chicago  &  N.  W.  Ry.  Co.,  125  Fed.  Rep.  745;  Brink- 
meier  v.  Missouri  Pac.  Ry.  Co.,  105  Pac.  Rep.  221;  Carson  v. 
Southern  Ry.  Co.,  46  S.  E.  Rep.  525;  Chicago  Junction  Ry.  Co.  v. 
King,  169  Fed.  Rep.  372;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Voelker, 
129  Fed.  Rep.  522;  Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  Baker,  91 
Fed.  Rep.  224;  Coleman,  State  ex  rel.  v.  Kelly,  70  L.  R.  A.  450; 
Coley  v.  North  Carolina  R.  Co.,  128  N.  C.  534,  39  S.  E.  Rep. 
43;  Crawford  v.  New  York  C.  &  H.  R.  R.  Co.,  10  Am.  Neg.  Rep. 
166;  Dawson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  114  Fed.  Rep.  870; 
Denver  &  R.  G.  R.  Co.  v.  Arrighi,  129  Fed.  Rep.  347;  Denver 
&  R.  G.  R.  Co.  v.  Gannon,  90  Pac.  Rep.  853;  Devine  v.  Illinois 
Central  R.  Co.,  156  111.  App.  369;  Donegan  v.  Baltimore  &  A.  Y. 
Ry.  Co.,  165  Fed.  Rep.  869;  Elmore  v.  Seaboard  Air  Line  Ry. 
Co.,  41  S.  E.  Rep.  786;  Erie  R.  Co.  v.  Russell,  183  Fed.  Rep, 
722;  Gilbert  v.  Burlington,  C.  R.  &  N.  Ry.  Co.,  128  Fed.  Rep.  529; 
Greenlee  v.  Southern  Ry.  Co.,  30  S.  E.  Rep.  115;  Harden  v.  No. 


TO  INTERSTATE  EMPLOYEES  277 

White  of   Louisiana,   now   Chief  Justice   of  the 
United  States,  offered  in  the  Senate  an  amend- 

Carolina  R.  Co.,  40  S.  E.  Rep.  184;  Hohenleitner  v.  Southern 
Pacific  Co.,  177  Fed.  Rep.  796;  International  &  G.  N.  Ry.  Co.  v. 
Elder,  99  S.  W.  Rep.  856;  Johnson  v.  Gr  at  Northern  Ry.  Co., 
178  Fed.  Rep.  643;  Johnson  v.  Mammoth  Vein  Coal  Co.,  114 
S.  W.  Rep.  722;  Johnson  v.  Southern  Pacific  Co.,  196  U.  S.  1; 
Kansas  City  M.  &  B.  R.  Co.  v.  Flippo,  35  Southern  Rep.  457; 
Kelleyv.  Great  Northern  Ry.  Co.,  152  Fed.  Rep.  211;  Larabeev. 
New  York,  N.  H.  &  H.  R.  Co.,  66  N.  E.  Rep.  1032;  Lewis  v. 
Pennsylvania  R.  Co.,  69  Atl.  Rep.  821;  Luken  v.  Lake  Shore 
&  M.  S.  Ry.  Co.,  154  111.  App.  550,  248  111.  377;  Lyon  v. 
Charleston  &  W.  C.  Ry.  Co.,  56  S.  E.  Rep.  IS;  Mallott  v.  Hood, 
66  N.  E.  Rep.  247;  Mobile,  J.  &  K.  C.  R.  Co.  v.  Bromberg,  37 
Southern  Rep.  395;  Myrtle  v.  Nevada  C.  &  O.  Ry.  Co.,  137  Fed. 
Rep.  193;  Nichols  v.  Chesapeake  &  O.  Ry.  Co.,  105  S.  W.  Rep. 
481;  Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg,  170  Fed.  Rep.  551;  Phila- 
delphia &  R.  Ry.  Co.  v.  Winkler,  56  Atl.  Rep.  112;  Plummer  v. 
Northern  Pacific  Ry.  Co.,  152  Fed.  Rep.  206;  Rio  Grande  South- 
ern R.  Co.  v.  Campbell,  96  Pac.  Rep.  986;  Rosney  v.  Erie  R.  Co., 
135  Fed.  Rep.  311;  St.  Louis,  I.  M.  <fc  S.  Ry.  Co.  v.  Neal,  98 
S.  W.  Rep.  958;  St.  Louis  Cordage  Co.  v.  Miller,  126  Fed.  Rep. 
495;  St.  Louis  &  S.  F.  R.  Co.  v.  Delk,  158  Fed.  Rep.  931;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor,  210  U.  S.  281;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  v.  York,  123  S.  W.  Rep.  376;  Schlemmer  v. 
Buffalo,  R.  &  P.  Ry.  Co.,  205  U.  S.  1;  Shohoney  v.  Quincy,  O.  & 
K.  C.  Ry.  Co.,  122  S.  W.  Rep.  1025;  Siegel  v.  New  York  C.  &  H. 
R.  R.  Co.,  178  Fed.  Rep.  873;  Snead  v.  Central  of  Ga.  Ry.  Co., 
151  Fed.  Rep.  608;  Southern  Pacific  Co.  v.  Allen,  106  S.  W.  Rep. 
441;  Southern  Ry.  Co.  v.  Carson,  194  U.  S.  136;  Southern  Ry. 
Co.  v.  Simmons,  55  S.  E.  Rep.  459;  Sprague  v.  Wisconsin  Cen- 
tral Ry.  Co.,  116  N.  W.  Rep.  104;  Suttle  v.  Choctaw,  O.  &  G.  R. 
Co.,  144  Fed.  Rep.  668;  Taggart  v.  Republic  Iron  &  S.  Co.,  141 
Fed.  Rep.  910;  Texas  &  Pacific  Ry.  Co.  v.  Swearingen,  122  Fed. 
Rep.  193;  Toledo,  St.  L.  &  W.  R.  Co.  v.  Gordon,  177  Fed.  Rep. 
152;  Troxler  v.  Southern  Ry.  Co.,  32  S.  E.  Rep.  550;  Union 
Pacific  R.  Co.  v.  Brady,  161  Fed.  Rep.  719;  Voelker  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,   116  Fed.  Rep.  867;   York  v.  St.  Louis,  L 


278  LIABILITY  OF   RAILROADS 

ment  which  became  a  part  of  the  original  Safety 
Appliance  Law.  This  amendment  provided  that 
an  employee  injured  by  any  locomotive,  car,  or 
train  in  use  contrary  to  the  provisions  of  the  Act 
"  shall  not  be  deemed  thereby  to  have  assumed 
the  risk  thereby  occasioned,  although  continuing 
in  the  employment  of  such  carrier  after  the  un- 
lawful use  of  such  locomotive,  car,  or  train  had  been 
brought  to  his  knowledge."  This  was  the  first 
attempt  wisely  made  to  relieve  from  rules  which, 
if  they  ever  had  any  basis  of  wisdom  or  usefulness 
in  their  application  to  modern  conditions,  had 
become  the  instruments  of  grave  injustice  to 
workmen.  It  was  of  this  aspect  of  the  Act  that 
Mr.  Justice  Holmes  in  Schlemmer  v.  Buffalo,  R. 
&  P.  Ry.  Co.,  205  U.  S.  1,  27  Sup.  Ct.  Rep.  407, 
said:  " Probably  the  modification  of  this  general 
principle  by  some  judicial  decisions  and  by  statutes 
like  section  8  is  due  to  an  opinion  that  men  who 
work  with  their  hands  have  not  always  the  freedom 
and  equality  of  position  assumed  by  the  doctrine 
of  laissez  faire  to  exist." 

The  necessity  for  a  construction  of  the  Act 

M.  &  S.  Ry.  Co.,  110  S.  W.  Rep.  803;  Felt  et  ux.  v.  Denver  & 
R.  G.  R.  Co.,  110  Pacific  Rep.  215;  United  States  v.  Western 
&  Atlantic  R.  Co.,  184  Fed.  Rep.  336;  Norfolk  &  Western  R. 
Co.  v.  Hazelrigg,  184  Fed.  Rep.  828;  United  States  v.  Balti- 
more &  Ohio  R.  Co.,  184  Fed.  Rep.  94;  United  States  v.  Norfolk 
&  Western  Ry.  Co.,  184  Fed.  Rep.  99;  Chicago,  R.  I.  &  P.  Ry. 
Co.  v.  Brown,  185  Fed.  Rep.  80;  Toledo,  St.  L.  &  W.  R.  Co.  v. 
Scllars,  184  Fed.  Rep.  855. 


TO   INTERSTATE   EMPLOYEES  279 

which  will  on  broad  lines  carry  out  the  humane 
purpose  of  Congress,  regardless  of  any  qualifying 
rules  which  existed  before  the  adoption  of  the 
statute,  is  clearly  and  forcibly  expressed  by  Cir- 
cuit Judge  Pritchard  in  the  case  of  Atlantic  Coast 
Line  Ry.  Co.  v.  United  States,  168  Fed.  Rep.  175, 
186,  where  he  says:  "The  contention  that  this 
statute  works  a  hardship  applies  with  equal  force 
to  any  statute  which  undertakes  to  control  the 
affairs  of  individuals  or  corporations  in  this  way; 
but  in  the  light  of  past  experience  we  are  inclined 
to  think  that  this  is  the  only  method  by  which 
dangers  incident  to  this  kind  of  employment  can 
be  minimized.  When  we  contemplate  the  vast 
number  of  accidents  resulting  from  the  operation 
of  railroad  trains  not  properly  equipped  with 
safety  appliances,  we  are  forced  to  admit  the 
wisdom  and  fairness  of  legislation  of  this  kind. 
It  has  been  the  policy  of  our  law-makers,  both 
state  and  national,  to  grant  railroad  and  other 
public  corporations  certain  privileges  not  enjoyed 
by  private  individuals;  and  while  this  is  a  wise 
policy,  and  has  met  with  general  approval,  it  is 
likewise  proper  that  due  regard  shall  be  had  for 
the  rights  of  those  employed  by  such  corporations 
in  performing  duties  that  are  necessarily  dangerous 
in  their  character,  and  it  cannot  be  said  to  be  an 
unreasonable  provision  to  require  railroad  com- 
panies, enjoying  privileges  thus   conferred  upon 


280  LIABILITY  OF  RAILROADS 

them,  to  manage  and  operate  their  engines  and 
cars  so  as  to  minimize  the  risks  incident  to  travel 
and  employment. 

"...  any  construction  short  of  holding  the 
Act  to  be  absolute  would  leave  undisturbed  the 
situation  as  it  existed  prior  to  its  enactment,  and 
it  would  be  difficult  to  imagine  a  state  of  facts 
upon  which  railroads  would  be  liable  for  a  penalty 
or  where  an  employee  would  be  able  to  recover  in 
an  action  instituted  to  recover  damages  for  in- 
juries incurred  on  account  of  failure  to  perform 
the  duties  imposed  by  the  statute.  .  .  .  The  de- 
gree of  diligence  required  by  the  statute  is  of  the 
highest  order,  and  the  duty  thus  imposed  is  absolute 
and  unconditional." 

In  the  case  of  Brinkmeier  v.  Missouri  Pacific  Ry. 
Co.,  81  Kan.  101,  105  Pac.  Rep.  221,  the  Court, 
speaking  of  the  Act,  says:  "Two  views  have  been 
taken  of  this  provision  by  courts  that  have  had  oc- 
casion to  construe  it.  One  view  is  that  Congress 
intended  to  require  railroad  companies  to  equip 
their  cars  with  automatic  couplers,  but  that  when 
this  had  been  done  a  company  was  to  be  liable  for 
an  injury  resulting  from  the  failure  of  the  device 
to  work  only  in  case  such  failure  was  due  to  some 
negligence  on  its  part  according  to  the  ordinary 
rules.  The  other  view  is  that  the  intention  was  to 
do  away  altogether  with  the  common-law  rule 
making  liability  depend  upon  negligence,  and  to 


TO   INTERSTATE   EMPLOYEES  281 

make  the  carrier  absolutely  liable  for  any  injury 
resulting  from  the  use  of  a  car  the  couplers  of 
which  did  not  in  fact  couple  automatically  by 
impact,  even  though  their  failure  to  do  so  was 
not  occasioned  by  any  negligence  on  its  part,  and 
could  not  have  been  prevented  by  any  practicable 
degree  of  diligence.  .  .  .  But  the  whole  Act  either 
has  for  its  purpose  merely  the  regulation  of  the 
character  of  appliances  to  be  used  —  the  forms 
of  mechanical  devices  to  be  employed  —  or  it 
has  a  broader  scope,  and  is  designed  as  well  to 
shift  the  burden  of  accidental,  non-negligent  in- 
juries occurring  in  connection  with  such  appliances 
from  the  injured  employee,  where  the  common  law 
placed  it,  to  the  employer,  in  accordance  with  the 
modern  theory  that  as  a  matter  of  legislative  pol- 
icy losses  arising  from  injuries  to  workmen  result- 
ing from  the  use  of  complicated  machinery  should 
be  counted  as  a  part  of  the  cost  of  production 
or  operation.  In  declaring  that  'the  obvious  pur- 
pose of  the  legislature  was  to  supplant  the  qualified 
duty  of  the  common  law  with  an  absolute  duty 
deemed  by  it  more  just,'  the  Supreme  Court 
characterizes  the  whole  Act  as  one  cast  in  the 
larger  mold.  Its  interpretation  is  authoritative 
and  final." 

Mr.  Justice  Moody,  in  delivering  the  opinion 
of  the  majority  of  the  court  in  St.  Louis,  I.  M.  and 
S.  Ry.  v.  Taylor,  210  U.  S.  281,  295,  28  Sup.  Ct. 


282  LIABILITY  OF  RAILROADS 

Rep.  616,  said:  "If  the  railroad  does,  in  point  of 
fact,  use  cars  which  do  not  comply  with  the 
standard,  it  violates  the  plain  prohibitions  of  the 
law,  and  there  arises  from  that  violation  the 
liability  to  make  compensation  to  one  who  is 
injured  by  it." 

The  Supreme  Court  of  the  United  States  in  two 
decisions  has  followed  its  ruling  in  the  Taylor 
Case  sustaining  the  absolute  character  of  the  lia- 
bility imposed  by  the  Safety  Appliance  Acts  upon 
the  carriers  subject  to  its  terms,  and  holding  that 
no  degree  of  diligence  will  excuse  a  violation  there- 
of. In  the  case  of  Chicago,  B.  &  Q.  R.  Co.  v. 
United  States,  31  Sup.  Ct.  Rep.  612,  Mr.  Justice 
Harlan  said:  "It  cannot  then  be  doubted  that 
this  court  in  the  Taylor  Case  considered  the  scope 
and  effect  of  the  Safety  Appliance  Act  of  Congress 
as  directly  involved  in  the  questions  raised  in  that 
case,  and  it  expressly  decided  that  the  provision 
in  the  second  section  relating  to  automatic  coup- 
lers imposed  an  absolute  duty  on  each  corporation 
in  every  case  to  provide  the  required  couplers  on 
cars  used  in  interstate  traffic.  It  also  decided 
that  non-performance  of  that  duty  could  not  be 
evaded  or  excused  by  proof  that  the  corporation 
had  used  ordinary  care  in  the  selection  of  proper 
couplers  or  reasonable  diligence  in  using  them 
and  ascertaining  their  condition  from  time  to 
time.      That   the    Taylor    Case,    as    decided    by 


TO   INTERSTATE  EMPLOYEES  283 

this  court,  has  been  so  interpreted  and  acted 
upon  by  the  federal  courts  generally,  is  entirely 
clear  as  appears  from  the  cases  cited  in  the 
margin.1 

"In  United  States  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  163  Fed.  Rep.  517,  Mr.  Justice  Van  Devanter, 
then  Circuit  Judge,  speaking  for  the  Circuit  Court 
of  Appeals,  referred  to  the  Taylor  Case  in  this 
court,  saying:  "It  is  now  authoritatively  settled 
that  the  duty  of  the  railway  company  in  situations 
where  the  congressional  law  is  applicable  is  not 
that  of  exercising  reasonable  care  in  maintaining 
the  prescribed  safety  appliance  in  operative  con- 
dition, but  is  absolute.  In  that  case  the  common- 
law  rules  in  respect  of  the  exercise  of  reasonable 
care  by  the  master  and  of  the  non-liability  of 

1  United  States  v.  Philadelphia  &  R.  Ry.  Co.,  162  Fed.  Rep. 
403;  United  States  v.  Lehigh  Valley  R.  Co.,  162  Fed.  Rep.  410  ; 
United  States  v.  Denver  &  R.  G.  R.  Co.,  163  Fed.  Rep.  519  ;  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  v.  United  States,  165  Fed.  Rep.  423  ; 
Doneganv.  Baltimore  &  N.  Y.  Ry.  Co.,  165  Fed.  Rep.  869;  United 
States  v.  Erie  R.  Co.,  166  Fed.  Rep.  352;  United  States  v .  Wheel- 
ing &  L.  E.  R.  Co.,  167  Fed.  Rep.  198,  201;  Atlantic  Coast  Line 
R.  Co.  v.  United  Stales,  168  Fed.  Rep.  175,  184;  Chicago  June.  Ry. 
Co.  v.  King,  169  Fed.  Rep.  372,  377 ;  United  States  v.  Southern 
Pac.  Co.,  169  Fed.  Rep.  407,  409;  Watson  v.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.,  169  Fed.  Rep.  942;  Wabash  R.  Co.  v.  United  States,  172 
Fed.  Rep.  864  ;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States, 
172  Fed.  Rep.  1021  ;  Norfolk  &  W.  Ry.  Co.  v.  United  States, 
\11  Fed.  Rep.  623;  United  States  v.  Illinois  Cent.  R.  Co.,  177 
Fed.  Rep.  801;  Johnson  v.  Great  Northern  Ry.  Co.,  178  Fed.  Rep. 
646;  Siegel  v.  New  York  Cent.  &  H.  R.  R.  Co.,  178  Fed.  Rep. 
873. 


284  LIABILITY   OF   RAILROADS 

the  master  for  the  negligence  of  a  fellow  servant 
were  invoked  by  the  railway  company,  and  were 
held  by  the  court  to  be  superseded  by  the  statute; 
.  .  .  While  the  defective  appliance  in  that  case 
was  a  drawbar,  and  not  a  coupler,  and  the  action 
was  one  to  recover  damages  for  the  death  of  an 
employee,  and  not  a  penalty,  we  perceive  nothing 
in  these  differences  which  distinguishes  that  case 
from  this.  As  respects  the  nature  of  the  duty 
placed  upon  the  railway  company,  section  5, 
relating  to  drawbars,  is  the  same  as  section  2, 
relating  to  couplers,  and  section  6,  relating  to  the 
penalty,  is  expressed  in  terms  which  embrace 
every  violation  of  any  provision  of  the  preceding 
sections.  Indeed,  a  survey  of  the  entire  statute 
leaves  no  room  to  doubt  that  all  violations  thereof 
are  put  in  the  same  category,  and  that  whatever 
properly  would  be  deemed  a  violation  in  an  action 
to  recover  for  personal  injuries  is  to  be  deemed 
equally  a  violation  in  an  action  to  recover  a 
penalty. 

"In  view  of  these  facts,  we  are  unwilling  to  regard 
the  question  as  to  the  meaning  and  scope  of  the 
Safety  Appliance  Act,  so  far  as  it  relates  to  auto- 
matic couplers  on  trains  moving  interstate  traffic, 
as  open  to  further  discussion  here.  If  the  court 
was  wrong  in  the  Taylor  Case  the  way  is  open  for 
such  an  amendment  of  the  statute  as  Congress 
may,  in  its  discretion,  deem  proper.     This  court 


TO   INTERSTATE   EMPLOYEES  285 

ought  not  now  disturb  what  has  been  so  widely- 
accepted  and  acted  upon  by  the  courts  as  having 
been  decided  in  that  case.  A  contrary  course 
would  cause  infinite  uncertainty,  if  not  mischief, 
in  the  administration  of  the  law  in  the  federal 
courts.  To  avoid  misapprehension,  it  is  appro- 
priate to  say  that  we  are  not  to  be  understood  as 
questioning  the  soundness  of  the  interpretation 
heretofore  placed  by  this  court  upon  the  Safety 
Appliance  Act.  We  only  mean  to  say  that  until 
Congress,  by  an  amendment  of  the  statute,  changes 
the  rule  announced  in  the  Taylor  Case,  this  court 
will  adhere  to  and  apply  that  rule." 

In  the  case  of  Delk  v.  St.  Louis  &  S.  F.  R.  Co., 
31  Sup.  Ct.  Rep.  617,  Mr.  Justice  Harlan  said 
in  his  opinion:  "The  construction  of  the  statute, 
adopted  by  a  majority  of  the  Circuit  Court  of 
Appeals  to  the  effect  that  the  act  did  not  impose 
upon  the  carrier  an  absolute  duty  to  provide  and 
keep  proper  couplers  at  all  times  and  under  all 
circumstances,  but  was  bound  only  to  the  extent 
of  its  best  endeavor  to  meet  the  requirements  of 
the  statute,  has  been  rejected  by  this  court  in 
Chicago,  Burlington  &  Quincy  Railway  Co.  v. 
United  States,  just  decided,  and  on  the  authority 
of  that  case  we  hold  that  the  Circuit  Court  of 
Appeals  erred  in  the  particular  mentioned.  .  .  . 

"In  this  view,  the  judgment  of  the  Circuit  Court 
of   Appeals    must   be  reversed,  because,  for  the 


286  LIABILITY   OF   RAILROADS 

reasons  above  stated,  it  erred  in  not  holding  that 
the  statute,  under  which  the  case  arose,  imposed 
on  the  carrier  an  absolute  duty  to  provide  its  cars, 
when  moving  interstate  traffic,  with  the  required 
couplers,  and  keep  them  in  proper  condition, 
and  that,  too,  without  any  reference  to  the  care 
and  diligence  which  might  have  been  exercised 
in  performing  its  statutory  duty." 

Thus,  as  interpreted  by  the  highest  court,  the 
statute  confers  upon  any  employee  who  is  injured 
by  reason  of  any  violation  by  a  railroad  of  the 
prohibitions  of  the  statute  a  right  to  maintain  an 
action  based  upon  the  statute,  and  to  recover 
against  such  railroad  compensatory  damages. 
In  all  such  actions  the  statute  provides  that  there 
shall  be  no  application  to  such  employee  of  the 
doctrine  of  " assumption  of  risk." 

In  the  case  of  Schlemmer  v.  Buffalo,  Rochester 
&  Pittsburg  Ry.  Co.,  31  Sup.  Ct.  Rep.  561,  Mr. 
Justice  Day,  speaking  of  the  Safety  Appliance 
Act,  said:  "The  statute  at  the  time  of  the  injury 
complained  of  took  away  assumption  of  risk  on 
the  part  of  the  employee  as  a  defense  to  an  action 
for  injuries  received  in  the  course  of  the  employ- 
ment. The  defense  of  contributory  negligence  was 
not  dealt  with  by  the  statute.  [A  footnote  here 
introduced  in  the  opinion  recites  the  fact  that  "By 
the  third  section  of  the  Act  of  April  22,  1908,  35 
Stat.  65,  amending  the  Employers'  Liability  Act, 


TO   INTERSTATE  EMPLOYEES  287 

no  employee  injured  or  killed  is  to  be  held  guilty 
of  contributory  negligence  in  any  case  where  the 
violation  by  a  common  carrier  of  any  statute  en- 
acted for  the  safety  of  employees  contributed  to 
the  injury  or  death  of  such  employee.]  .  .  . 

"In  the  present  case  the  statute  of  Congress 
expressly  provides  that  the  employee  shall  not  be 
deemed  to  have  assumed  the  risk  of  injury  if  such 
is  occasioned  by  his  continuing  in  the  employ  of  the 
carrier  after  the  unlawful  use  of  the  car  or  train 
in  the  failure  to  provide  automatic  couplers  has 
been  brought  to  his  knowledge.  Therefore,  when 
Schlemmer  saw  that  the  shovel-car  was  not 
equipped  with  an  automatic  coupler  he  would 
not  from  that  knowledge  alone  take  upon  himself 
the  risk  of  injury  without  liability  from  his  em- 
ployer. 

"But  there  is  nothing  in  the  statute  absolving 
the  employee  from  the  duty  of  using  ordinary 
care  to  protect  himself  from  injury  in  the  use 
of  the  car  with  the  appliances  actually  furnished. 
In  other  words,  notwithstanding  the  company 
failed  to  comply  with  the  statute,  the  employee 
was  not  for  that  reason  absolved  from  the  duty 
of  using  ordinary  care  for  his  own  protection  under 
the  circumstances  as  they  existed.  This  has  been 
the  holding  of  the  courts  in  construing  statutes 
enacted  to  promote  the  safety  of  employees. 
Krause  v.  Morgan,  53  Ohio  St.  26;  Hallam  v.  Ry. 


288  LIABILITY  OF   RAILROADS 

Co.,  80  Wise.  299;  Grand  v.  Ry.  Co.,  83  Mich. 
564;  Taylor  v.  Manufacturing  Co.,  143  Mass.  470. 
And  such  was  the  holding  of  the  Court  of  Appeals 
of  the  Eighth  Circuit  where  the  statute  now  under 
consideration  was  before  the  court.  Denver  & 
Rio  Grande  R.  Co.  v.  Arrighi,  129  Fed.  Rep.  347. 

"In  the  absence  of  legislation,  at  the  time  of 
the  injury  complained  of,  taking  away  the  de- 
fense of  contributory  negligence,  it  continued  to 
exist.  ..." 

In  view  of  this  authoritative  declaration  that, 
prior  to  the  enactment  of  the  Employers'  Liability 
Act,  contributory  negligence  was  a  defense  to  an 
action  under  the  Safety  Appliance  Act,  there  is 
a  temptation  to  inquire  how  there  could  have 
been  any  contributory  negligence  in  an  action  not  in 
itself  based  on  negligence,  but  predicated  upon  the 
failure  of  defendant  to  comply  with  an  absolute 
standard  prescribed  by  statute. 

Contributory  negligence  is  a  defense  only  in 
an  action  for  negligence.  Actions  under  the  Safety 
Appliance  Act  in  no  manner  depend  upon  negli- 
gence. Delk  v.  St.  Louis  &  S.  F.  R.  Co.,  31  Sup. 
Ct.  Rep.  617. 

However,  inasmuch  as  Mr.  Justice  Day  has, 
in  the  footnote  to  the  Schlemmer  Case,  declared 
that  in  the  present  state  of  the  law  contributory 
negligence  is  not  a  defense,  it  is  idle  to  pursue  the 
matter  further. 


TO   INTERSTATE   EMPLOYEES  289 

§  66.  Duty  of  Defendant  Railroad  the 
same  in  Personal  Injury  Suits  as  in  Ac- 
tions for  Statutory  Penalty. 

The  absolute  mandatory  obligation  of  an  inter- 
state railroad  to  comply  with  the  provisions  of 
the  Safety  Appliance  Acts  as  to  the  equipment  and 
maintenance  of  its  trains,  locomotives  and  cars 
is  the  same  in  remedial  actions  for  personal  in- 
juries and  in  actions  by  the  government  for  statu- 
tory penalties.  Atlantic  Coast  Line  Ry.  Co.  v. 
United  States,  168  Fed.  Rep.  175,  184;  United 
States  v.  Atchison,  Topeka  &  Santa  Fe  Ry.  Co., 
163  Fed.  Rep.  517.  In  the  latter  case  it  was  said, 
"Indeed,  a  survey  of  the  entire  statute  leaves 
no  room  to  doubt  that  all  violations  thereof 
are  put  in  the  same  category,  and  that  whatever 
properly  would  be  deemed  a  violation  in  an  action 
for  personal  injuries  is  to  be  deemed  equally  a 
violation  in  an  action  to  recover  a  penalty." 

This  being  true,  the  rules  laid  down  in 
the  cases  of  government  prosecutions  for  pen- 
alties are  applicable  to  cases  in  which  suits  are 
brought  for  a  remedy  in  damages  for  death  or 
personal  injuries  suffered  by  employees. 

From  those  cases  the  following  general  rules 
may  be  deduced: 

The  Safety  Appliance  Acts  x  apply  to  any  car 

1  The  most  comprehensive  arrangement  in  small  compass  of  all 
the  cases  under  this  statute  (to  January  1,  1910)  may  be  found 


290  LIABILITY   OF   RAILROADS 

used  on  an  interstate  railroad,  United  States  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  149  Fed.  Rep.  486; 
United  States  v.  Great  Northern  R.  Co.,  145  Fed. 
Rep.  438;  United  States  v.  Southern  Ry.  Co.,  164 
Fed.  Rep.  347;  United  States  v.  Wheeling  &  Lake 
Erie  R.  Co.,  167  Fed.  Rep.  198;  Wabash  R.  Co.  v. 
United  States,  168  Fed.  Rep.  1;  "and  manifestly 
the  word  'car'  was  used  in  the  statute  in  its 
generic  sense.  There  is  nothing  to  indicate  that 
any  particular  kind  of  car  was  meant.  Tested  by 
context,  subject-matter,  and  object,  'any  car' 
meant  all  kinds  of  cars  running  on  rails,  including 
locomotives."  Johnson  v.  Southern  Pacific  Co., 
196  U.  S.  1,  25  Sup.  Ct.  Rep.  158. 

The  Safety  Appliance  Acts  apply  to  passenger 
cars  as  well  as  freight  cars,  Norfolk  &  W.  Ry.  Co. 
v.  United  States,  177  Fed.  Rep.  623;  to  a  steam- 
shovel  car,  consisting  of  machinery  bolted  to  a 
platform  supported  on  trucks,  Schlemmer  v.  Buf- 
falo, R.  &  P.  Ry.  Co.,  205  U.  S.  1,  27  Sup.  Ct.  Rep. 
406;  to  a  tender,  United  States  v.  Southern  Ry. 
Co.,  170  Fed.  Rep.  1014;  Philadelphia  &  R.  Ry. 
Co.  v.  Winkler,  56  Atl.  Rep.  (Del.)  112;  to  a 
caboose,  United  States  v.  Toledo  Terminal  R.  Co., 
Kent's  Index-Digest,  283;    to  an  empty  freight 

in  an  Index-Digest  of  Decisions  under  the  Federal  Safety  Ap- 
pliance Acts,  prepared  by  Otis  Beall  Kent,  by  direction  of  the 
Interstate  Commerce  Commission.  (Pub.  Doc.)  Government 
Printing  Office,  Washington,   D.    C,   1910. 


TO   INTERSTATE  EMPLOYEES  291 

car,  Voelker  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  116 
Fed.  Rep.  867;  Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
United  States,  165  Fed.  Rep.  423;  United  States 
v.  Northern  Pacific  Term.  Co.,  144  Fed.  Rep.  861; 
United  States  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co., 
154  Fed.  Rep.  516;  United  States  v.  Wheeling 
&  L.  E.  Ry.  Co.,  167  Fed.  Rep.  198;  United  States 
v.  International  &  Great  Northern  R.  Co.,  174  Fed. 
Rep.  638;  Wabash  R.  Co.  v.  United  States,  168 
Fed.  Rep.  1;  Chicago  &  N.  W.  Ry.  Co.  v.  United 
States,  168  Fed.  Rep.  236;  Mallott  v.  Hood,  66 
N.  E.  Rep.  (Illinois)  247. 

If  in  any  train  there  is  a  car  used  in  interstate 
traffic,  this  gives  an  interstate  character  to  the 
whole  of  such  train,  and  all  cars  must  comply 
with  the  standards  fixed  by  the  Safety  Appliance 
Acts.  United  States  v.  Wheeling  &  L.  E.  Ry.  Co., 
167  Fed.  Rep.  198;  United  States  v.  Louisville 
&  N.  R.  Co.,  162  Fed.  Rep.  185;  United  States  v. 
Chicago  G.  W.  Ry.  Co.,  162  Fed.  Rep.  775.  (See 
also  United  States  v.  International  &  Great  North- 
ern Ry.  Co.,  174  Fed.  Rep.  638;  Chicago  &  N.  W. 
Ry.  Co.  v.  United  States,  168  Fed.  Rep.  236; 
United  States  v.  Southern  Pacific  Co.,  169  Fed. 
Rep.  407.) 

Even  the  transportation  in  a  train  otherwise 
exclusively  local  and  intrastate  of  a  single  package 
of  interstate  express  matter  was  held  to  impress 
an  interstate  character  upon  the  whole  train,  so 


292  LIABILITY   OF   RAILROADS 

as  to  make  it  imperative  that  such  train  should  be 
equipped  in  compliance  with  the  Safety  Appliance 
Law.  United  States  v.  Colorado  &  N.  W.  Ry. 
Co.,  157  Fed.  Rep.  342,  citing  and  following  The 
Daniel  Ball,  10  Wall.  557.  The  Safety  Appliance 
Acts  apply  to  terminal  companies  engaged  in 
effecting  a  transfer  of  cars  from  one  line  of  railway 
to  another,  if  any  of  such  cars  are  in  use  at  the 
time  in  interstate  traffic.  United  States  v.  Northern 
Pac.  Terminal  Co.,  144  Fed.  Rep.  861.  Also  to 
Belt  Line  Railroads  making  similar  transfers, 
although  the  lines  of  such  Belt  Line  Railroad 
are  exclusively  within  the  lines  of  a  state,  a  county, 
or  a  single  city.  Belt  Ry.  Co.  of  Chicago  v.  United 
States,  168  Fed.  Rep.  542. l  In  United  States  v. 
Union  Stock  Yards  Co.  of  Omaha,  161  Fed.  Rep. 
919,  District  Judge  Munger  defined  a  railroad 
within  the  meaning  of  the  Act  as  follows:  "A 
railroad  has  been  defined  as  a  road  or  way  on 
which  iron  rails  are  laid  for  wheels  to  run  on  for 
the  conveyance  of  heavy  loads  or  vehicles.  Dins- 
more  v.  Racine  M.  R.  Co.,  12  Wise.  649.    Such  a 

1  This  case  has  been  taken  to  the  Supreme  Court  by  certiorari, 
and  will  soon  be  reached  for  argument  in  that  court.  The  Belt 
Railway  Company  in  its  petition  for  certiorari  relied  upon 
United  States  v.  Geddes,  131  Fed.  Rep.  452;  Texas  &  P.  Ry.  Co. 
v.  Interstate  Commerce  Com.,  162  U.  S.  197,  16  Sup.  Ct.  Rep. 
666;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas,  204  U.  S.  403; 
27  Sup.  Ct.  Rep.  360;  United  States  v.  Chicago,  K.  &  S.  Ry.  Co., 
XI  Fed.  Rep.  783;  and  dissenting  opinion  of  Judge  Phillips  in 
United  States  v.  Colo.  N.  W.  R.  Co.,  157  Fed.  Rep.  321,  341. 


TO  INTERSTATE  EMPLOYEES  293 

track  is  a  railroad  independently  of  the  use  made 
of  the  track  in  the  hauling  of  cars  over  it,  as  was 
pointed  out  in  Lake  Superior  &  M.  R.  Co.  v.  United 
States,  93  U.  S.  442." 

In  affirming  the  judgment  of  the  District  Court 
in  the  Union  Stock  Yards  Company  Case,  169  Fed. 
Rep.  404,  Judge  Van  Devanter  said:  "It  must 
be  conceded  that  the  Stock  Yards  Company  would 
not  be  a  common  carrier,  nor  the  property  used 
by  it  a  railroad,  if  its  operations  were  confined  to 
maintaining  the  sheds  or  pens,  to  unloading  ship- 
ments thereto,  to  loading  shipments  therefrom, 
and  to  feeding,  watering,  caring  for,  and  otherwise 
handling  live  stock  therein.  But  its  operations 
are  not  thus  confined.  On  the  contrary,  they 
include  the  maintenance  and  use  of  railroad  tracks 
and  locomotives,  the  employment  of  a  corps  of 
operatives  in  that  connection,  and  the  carriage  for 
hire  over  its  tracks  of  all  live  stock  destined  to 
or  from  the  sheds  or  pens,  which,  in  effect,  are  the 
depot  of  the  railroad  companies  for  the  delivery 
and  shipments  of  live  stock  at  South  Omaha.  The 
carriage  of  these  shipments  from  the  transfer  track 
to  the  sheds  or  pens,  and  vice  versa,  is  no  less  a  part 
of  their  transit  between  their  points  of  origin  and 
destination  than  is  their  carriage  over  any  other 
portion  of  the  route.  .  .  . 

"In  these  circumstances  controlling  decisions 
leave  no  room  to  doubt  that  it  is  a  common  carrier 


294  LIABILITY   OF   RAILROADS 

engaged  in  interstate  commerce  by  railroads 
within  the  meaning  of  the  Safety  Appliance  Law." 

Citing  United  States  v.  Colorado  &  N.  W.  R.  Co., 
157  Fed.  Rep.  321  (Petition  for  certiorari  denied, 
209  U.  S.  544,  28  Sup.  Ct.  Rep.  570);  United 
States  v.  Colorado  &  N.  W.  R.  Co.,  157  Fed.  Rep. 
342;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Voelker,  129 
Fed.  Rep.  522;  Johnson  v.  Southern  Pacific  Co., 
196  U.  S.  1,  25  Sup.  Ct.  Rep.  158;  McNeil 
v.  Southern  Ry.  Co.,  203  U.  S.  543,  26  Sup.  Ct. 
Rep.  722;  Missouri  Pacific  Ry.  Co.  v.  Larabee 
Flour  Mills  Co.,  211  U.  S.  612,  624,  29  Sup.  Ct. 
Rep.  214,  218;  Louisville  &  N.  R.  Co.  v.  Central 
Stock  Yards  Co.,  212  U.  S.  132,  29  Sup.  Ct.  Rep. 
246,  248. 

In  important  decisions  by  the  Circuit  Court  of 
Appeals  for  the  Seventh  Circuit  the  Safety  Ap- 
pliance Act  has  been  applied  to  any  cars  in  use 
by  a  railroad  on  its  interstate  highway.  Dis- 
regarding the  character  of  the  car  itself  arising 
from  its  use  in  local  traffic,  that  court  holds  the 
federal  law  to  be  applicable  to  any  use  of  a  car  on 
the  highway  used  by  the  railway  for  its  interstate 
traffic.  This  interpretation  will  meet  with  adverse 
criticism,  but  in  the  end  it  will  be  authoritatively 
determined  to  be  tenable  and  sound.  Safety  can 
be  promoted  on  the  interstate  highways  only  by 
regulation  vested  in  a  single  power,  which  may 
make   rules   sufficiently   broad    to   safeguard   all 


TO  INTERSTATE   EMPLOYEES  295 

traffic  using  such  highway.  By  no  other  con- 
struction of  the  commerce  clause  can  interstate 
traffic  be  safely  regulated.  The  existence  of  two 
powers,  each  independently  authorized  to  regulate 
and  control  the  use  of  an  interstate  railroad  high- 
way, would  lead  to  such  confusion  that  neither 
of  such  powers  could  be  effectually  exercised. 
Wabash  Ry.  Co.  v.  United  States,  168  Fed.  Rep.  1 ; 
United  States  v.  Southern  Ry.  Co.,  164  Fed.  Rep. 
347;  Wisconsin  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
117  N.  W.  Rep.  686. 


296  LIABILITY   OF   RAILROADS 


CHAPTER   XV 

DEFINITION    OF    A  "USE"   OF    A    DEFECTIVE    CAR 

§  67.  What  is  a  "Use"  of  a  Defective  Car 
within  the  Meaning  of  the  Safety  Ap- 
pliance Acts? 

Section  2  of  the  Act  of  1893  forbids  the  carrier 
to  "haul,  or  permit  to  be  hauled  or  used"  .  .  . 
any  car  not  equipped  in  compliance  with  its  terms. 

Section  4  of  the  same  Act  forbids  the  carrier 
"to  use  any  car"  in  violation  of  its  terms. 

Section  6  imposes  a  penalty  when  any  car  is 
"hauled  or  used"  in  violation  of  the  Act;  and  the 
amended  Act  of  1903  applies  "to  all  trains,  loco- 
motives, tenders,  cars,  and  similar  vehicles  used 
on  any  railroad,  etc." 

The  question  what  is  a  "use"  of  a  car  in  viola- 
tion of  the  statute  has  been  considered  in  two  cases 
recently  decided.  Erie  R.  Co.  v.  Russell,  183  Fed. 
Rep.  722,  and  United  States  v.  St.  Louis  South- 
western Rij.  Co.  of  Texas,  184  Fed.  Rep.  28.  In 
the  first  of  these  cases  Circuit  Judge  Noyes,  deliv- 
ering the  opinion  of  the  court,  said:  "The  first 
phase  of  this  question  is  whether  the  car  with 
the   defective   coupler  was,   at   the   time   of  the 


TO   INTERSTATE   EMPLOYEES  297 

accident,  in  use  within  the  meaning  of  the  amended 
Act. 

"It  is  pointed  out  that  the  car  was  not  being 
hauled  at  the  time  of  the  accident,  but  was  stand- 
ing upon  a  switch  track  for  the  insertion  of  the 
knuckle  in  the  coupling  apparatus,  and  it  is  con- 
tended that  it  was  not  then  being  used  within  the 
contemplation  of  the  statute. 

"  We  think,  upon  the  authority  of  Johnson  v. 
Southern  Pacific  Co.,  196  U.  S.  1,  25  Sup.  Ct.  Rep. 
158,  that  this  contention  is  not  well  founded.  The 
car  with  the  defective  coupler  was  not  withdrawn 
from  use.  Although  billed  to  the  repair  shop,  it 
was  not  sent  there,  nor  was  it  sent  to  any  place 
used  especially  for  making  repairs.  The  insertion 
of  the  knuckle  was  a  simple  matter.  The  car  was 
stopped  only  temporarily,  and  it  was  intended  to 
couple  it  to  the  other  cars  as  soon  as  repaired." 

In  the  second  case,  United  States  v.  St.  Louis 
S.  W.  Ry.  Co.  of  Texas,  Circuit  Judge  Shelby  said: 
"The  statute  forbids  hauling  and  using.  Why 
were  both  words  used?  If  the  car  was  fully 
loaded,  and  on  the  track  ready  to  be  started  as  a 
part  of  an  interstate  train,  with  engine  attached 
and  fired,  and  requiring  only  the  touch  of  the 
engineer  to  start,  would  not  the  car  be  'used,'  or 
in  use,  within  the  statute  before  it  was  hauled?  If 
it  was  without  the  automatic  coupler,  so  that  the 
brakeman  would  have  to  go  between  the  cars  to 


298  LIABILITY   OF   RAILROADS 

couple  them,  it  would  clearly  be  within  the  mis- 
chief the  statute  was  intended  to  prevent.  '  Used1 
has  other  meanings  than  'hauled.'  It  is  a  broader 
word.  To  haul  is  to  use,  but  may  not  a  car  be 
used  within  the  statutory  meaning  otherwise  than 
by  being  hauled?" 

May  there  be  any  "use"  of  cars  on  an  interstate 
railroad  not  within  the  scope  of  the  Safety  Ap- 
pliance Laws?  It  is  here  to  be  noted  that  in  the 
Johnson  Case,  196  U.  S.  1,  25  Sup.  Ct.  Rep.  158, 
and  the  Schlemmer  Case,  205  U.  S.  1,  27  Sup. 
Ct.  Rep.  407,  it  was  held  that  the  Act  applied  to 
"all  cars  and  similar  vehicles  used  on  any  railroad 
engaged  in  interstate  commerce." 

Notwithstanding  the  general  and  inclusive  terms 
of  this  declaration  of  the  Supreme  Court  as  to  the 
interpretation  of  the  statute,  and  notwithstanding 
further  the  plain  words  of  the  statute  as  amended 
by  the  Act  of  1903,  some  courts  have  read  into 
the  statute  an  exception  relieving  the  railroad 
from  liability  when  the  "use"  of  a  car  was  for  the 
purpose  of  repair. 

Any  use  of  railroad  equipment  which  endangers 
passengers  or  employees  is  clearly  included  in  the 
statute;  because  it  is  the  purpose  of  the  Act  to 
protect  men  from  the  dangers  arising  from  defects 
in  such  equipment.  The  cause  of  the  defect  is  of 
no  materiality.  Nor  is  the  length  of  time  the 
defect  has  existed  at  all  important.    Whether  the 


TO   INTERSTATE   EMPLOYEES  299 

defect  arises  from  ordinary  use  in  railroading  or 
from  abusive  handling  is  of  no  importance,  if  the 
statutory  standards  are  not  complied  with  at  the 
time  an  employee  is  called  upon  to  use  the  car  for 
any  purpose.  Least  of  all  is  there  any  foundation 
for  the  claim  that  when  the  lack  of  compliance  is  so 
clear  and  manifest  that  cars  are  being  moved  for 
the  purpose  of  repair,  the  railroad  is  then  excused 
from  liability  to  one  who  may  be  injured  because 
of  such  lack  of  compliance. 

Under  such  circumstances  the  peril  to  the  em- 
ployee is  greatest.  His  use  of  the  car  is  a  use  by 
the  railroad.  His  action  in  handling  or  operat- 
ing the  defective  appliances  is  action  necessary 
in  the  interests  of  his  interstate  employer  and  to 
the  carrying  on  of  its  interstate  business. 

It  has  been  said  that  "repair  shops  cannot  be 
kept  on  wheels."  But  this  does  not  go  to  the  heart 
of  the  question.  The  car  becoming  defective  can- 
not be  left  on  the  main  track  to  delay  and  obstruct 
the  traffic  of  the  road.  It  is  the  carrying  on  of 
the  business  of  the  railroad  which  requires  its 
movement  to  a  place  of  repair.  Some  employee 
must  then  incur  the  peril  of  getting  such  car  out 
from  other  cars  in  a  train  and  of  chaining  it  up  or 
otherwise  connecting  it  with  a  locomotive  for  re- 
moval to  a  place  for  repair.  Such  action  is  entirely 
for  the  promotion  of  the  business  of  the  employer. 
It  is  wholly  in  his  interest.     No  interest  of  the 


300  LIABILITY   OF   RAILROADS 

employee  is  promoted  by  the  incurring  of  such 
perils  as  are  involved  in  work  under  such  circum- 
stances. The  regular  operation  of  the  employer's 
business  creates  the  peril.  No  good  reason,  there- 
fore, exists  for  relieving  the  employer  from  the 
obligation  imposed  by  the  statute  to  compensate 
for  injuries  arising  from  such  perils. 

If  the  statute  is  ever  to  be  a  benefit  and  protec- 
tion to  the  employee,  it  ought  to  be  under  the  cir- 
cumstances where  he  needs  it  most.  As  Chief 
Justice  Fuller  said  in  Johnson  v.  Southern  Pacific 
Company,  196  U.  S.  1,  25  Sup.  Ct.  Rep.  158,  "The 
risk  in  coupling  and  uncoupling  was  the  evil  sought 
to  be  remedied."  Thus,  it  is  apparent  that  when 
any  necessity  for  coupling  or  uncoupling  exists,  the 
statute  applies.  No  other  test  effectuates  the 
purpose  of  Congress. 

It  is  important  to  bear  in  mind  that  in  the 
argument  in  the  Johnson  Case,  196  U.  S.  1,  25 
Sup.  Ct.  Rep.  158,  counsel  for  the  railroad  con- 
tended that  "the  mere  intention  to  use  an  isolated 
car  standing  in  a  railroad  yard  for  that  purpose 
is  insufficient  to  give  it  an  interstate  character." 
But  the  Supreme  Court  in  its  unanimous  opinion 
rejected  this  contention,  and  said  as  to  such  a  car 
"it  was  being  regularly  used  in  interstate  traffic 
and  so  within  the  law." 

So  if  any  car  regularly  used  in  interstate  com- 
merce  is   defective   as   to   its   safety   appliances 


TO   INTERSTATE   EMPLOYEES  301 

while  it  is  in  use  on  an  interstate  railroad,  and  this 
defective  condition  results  in  injury  to  any  em- 
ployee connected  with  its  use  for  any  of  the  legiti- 
mate purposes  of  the  company,  including  the 
purpose  to  repair,  the  railroad  is  liable  under  the 
statute  to  compensate  for  such  injuries. 

Whatever  question  there  may  be  as  to  the  cor- 
rectness of  the  view  just  stated  as  to  cases  arising 
before  April  5,  1910,  the  date  of  the  passage  of  the 
amended  Act  upon  this  subject,  there  is  no  doubt 
as  to  cases  arising  since  that  date  that  any  move- 
ment of  a  car  defective  as  to  safety  appliances 
generally  used  in  interstate  commerce  is  "at  the 
sole  risk  of  the  carrier,"  and  that  the  carrier  is 
liable  to  any  employee  who  may  be  injured  as  the 
result  of  the  movement  of  a  car  for  the  purpose  of 
repair,  if  its  defective  condition  was  the  cause  of 
such  injury. 

In  Siegel  v.  New  York  Central  R.  Co.,  178 
Fed.  Rep.  873,  876,  District  Judge  Archbald, 
delivering  the  opinion,  said:  "But  the  loss  of  its 
couplers  having  practically  disabled  it  and  put  it 
out  of  commission,  and  the  car,  after  that,  being 
shifted  solely  for  the  purpose  of  getting  it  out  from 
the  midst  of  the  others,  and  putting  it  in  the  way 
of  being  taken  care  of,  from  the  moment  that  this 
was  recognized  and  acted  upon,  it  lost  any  inter- 
state character,  which  it  may  have  had  before, 
and  ceased  to  be  hauled  or  used  in  moving  inter- 


302  LIABILITY   OF   RAILROADS 

state  traffic,  so  as  to  make  the  company  liable 
for  injuries  received  because  of  its  defective 
condition." 

If  this  rule  is  correct,  no  recovery  is  open  to 
those  who  incur  the  grave  peril  of  performing  as 
the  agents  of  the  railroads  the  necessary  duty  of 
arranging  for  and  moving  cars  which  are  so  mani- 
festly defective  as  to  require  segregation  and 
repair. 

The  rule  overlooks  the  purpose  of  the  Safety 
Appliance  Acts  to  protect  from  just  such  dangers. 
It  was  for  this  purpose  that  the  section  was  in- 
serted, that  knowledge  of  the  defect  should  not 
be  a  basis  of  an  assumption  of  risk. 

The  court  does  not  place  this  decision  on  the 
ground  that  assisting  in  movement  for  repair 
creates  an  assumption  of  risk.  Yet  the  obligation 
to  assist  in  a  movement  to  repair  arises  out  of  the 
contract  of  employment,  or  there  is  no  such  obliga- 
tion. But  there  is  an  obligation  somewhere  on 
some  agents  of  the  railroad  to  move  such  defec- 
tive cars  when  movement  is  necessary  for  repair. 
The  contract  of  employment  requires  employees 
to  assist  in  the  movement  of  defective  cars  when 
necessary  for  repair.  And  as  to  the  movement  of 
such  cars  Congress  has  declared  that  there  should 
be  no  construction  of  the  employment  contract 
that  should  create  as  one  of  its  terms  an  assump- 
tion of  risk. 


TO   INTERSTATE   EMPLOYEES  303 

Overlooking  the  obvious  fact  that  if  any  obliga- 
tion to  assist  in  the  movement  of  defective  cars 
arises  in  the  course  of  the  employment,  the  terms 
of  that  obligation  are  fixed  by  the  terms  of  the 
employment  contract  which  the  statute  says  shall 
not  contain  any  assumption  of  risk,  the  court 
takes  such  a  movement  of  a  defective  car  out  of 
the  Act  by  one  bold  stroke  in  holding  it  not  to  be 
a  movement  in  interstate  commerce.  The  rail- 
road is  interstate.  The  employee  is  an  interstate 
employee.  The  place  of  injury  is  an  interstate 
highway.  The  car  is  an  interstate  instrumentality. 
The  car  is  perhaps  loaded  with  interstate  traffic, 
but  at  all  events  is  engaged  in  interstate  traffic. 
The  repair  is  one  of  the  necessary  incidents  for 
the  carrying  on  of  the  interstate  business  of  the 
carrier.  Repair  is  made  upon  a  car  generally  used 
in  interstate  traffic  to  rehabilitate  it  for  interstate 
traffic. 

And  yet  the  movement  of  such  a  car  on  such  a 
railroad  by  such  an  employee  for  such  a  purpose, 
manifestly  incidental  to  and  necessarily  arising 
out  of  the  interstate  business  of  the  carrier,  is  said 
not  to  be  an  interstate  movement.  Let  us  apply 
this  logic  to  another  possible  state  of  facts.  Con- 
gress has  power  to  regulate  the  liability  of  inter- 
state railroads  for  their  injuries  to  passengers. 
Suppose  special  provision  required  safe  and  suf- 
ficient rails.    A  rail  becomes  manifestly  defective. 


304  LIABILITY  OF  RAILROADS 

Repairs  are  attempted.  While  the  rail  is  removed 
a  train  is  wrecked  because  of  this  track  defect. 
Would  any  court  hold  that  by  reason  of  repairs 
which  were  in  progress  the  track  had  lost  its  inter- 
state character  ? 

Attention  is  directed  to  the  strong  statements 
of  congressional  purpose  and  intent  upon  this 
point  in  the  recent  report  of  the  Committee  on 
Interstate  Commerce  submitted  to  the  Senate 
February  18,  1910,  Senate  Report  No.  250,  61st 
Congress,  2d  Session,  page  3.  In  this  report 
Senator  Elkins,  Chairman  of  the  Committee,  says 
on  this  subject:  "The  amendment  proposed  per- 
mitting movement  without  penalty  of  a  defective 
car  to  a  repair  shop,  when  necessary,  is  deemed 
advisable,  as  the  Supreme  Court  of  the  United 
States,  in  the  Taylor  Case,  held  that  the  present 
Act,  which  this  Act  amends  and  supplements,  is 
absolute,  and  there  is  therefore  great  doubt  as  to 
the  right  of  a  railroad  company  to  move  even  a 
defective  car  to  a  point  of  repair  without  incurring 
the  penalties  of  the  Act.  It  is  with  no  intent  of 
relieving  the  carriers  from  the  construction  put 
upon  the  Act  by  the  courts  in  personal  injury 
suits,  so  far  as  liability  for  injury  to  their  em- 
ployees is  concerned,  that  this  amendment  is  rec- 
ommended. Such  necessary  movement  is  still  to 
be  at  the  risk  of  the  carrier,  and  the  absolute 
character  of  the  Act  in  its  remedial  features  as 


TO   INTERSTATE   EMPLOYEES  305 

determined  in  the  Taylor  Case  is  intended  to  be 
preserved  and  maintained  under  this  proposed 
amendment. 

"The  carriers  have  urged  this  amendment  to 
relieve  them  from  penalties  which  they  claim  are 
possible  under  existing  law,  if  a  defective  car  is 
hauled  to  a  repair  shop,  although  such  movement 
is  one  which  must  necessarily  be  made  for  the 
purpose  of  placing  such  car  in  repair.  .  .  . 

"It  is  one  of  the  perils  of  the  operation  of  the 
railroad  for  which  train  men  are  not  at  all  re- 
sponsible. As  it  is  practically  obligatory  upon 
the  train  men  to  incur  such  dangers,  there  should 
be  no  impairment  of  any  right  of  such  train  men 
by  reason  of  the  performance  of  such  dangerous 
duty.  As  the  law  stands  to-day  prohibition  of 
the  movement  of  such  defective  car  seems  to  be 
absolute,  and  the  rights  of  the  train  men  in  operat- 
ing such  a  car  have  been  declared  to  be  absolute. 
In  removing  the  penalty  for  the  hauling  of  such  a 
defective  car,  when  necessary,  to  a  repair  shop, 
it  is  intended  by  the  terms  of  the  proviso  to  pre- 
serve intact  and  unimpaired  all  the  rights  now 
existing  by  law  to  the  train  man,  or  his  repre- 
sentative, to  recover  in  case  of  injury  or  death 
resulting  from  the  peril  of  participating  in  the 
movement  of  such  a  defective  car. 

"It  is  but  just  that  the  risk  of  working  about 
and  the  movement  of  defective  equipment  should 


306  LIABILITY   OF   RAILROADS 

be  borne  by  the  carriers.  This  amendment  does 
not  permit  the  movement  of  damaged  cars  in 
connection  with  those  commercially  used,  and  in 
every  other  respect  the  interests  of  the  employees 
have  been  fully  safeguarded." 

When  a  car  which  Congress  has  required  to 
comply  with  certain  standards  becomes  so  mani- 
festly defective  that  repairs  are  necessary,  does  the 
car  then  cease  to  be  interstate  so  that  the  con- 
gressional power  cannot  reach  it?  The  manifest 
lack  of  compliance  with  the  federal  statute,  of 
a  car  otherwise  subject  to  its  terms,  does  not  render 
the  federal  power  inapplicable  to  the  subject 
matter  of  its  regulation. 

The  subject  matter  of  the  repairs  or  repairing 
of  defective  cars  is  not  withdrawn  from  the  field 
of  federal  power.  This  subject  matter  may  be  of 
such  an  interstate  character  as  to  justify  federal 
regulation.    Congress  has  legislated  upon  it. 

The  "Act  to  supplement  an  Act  to  promote  the 
safety  of  employees  and  travelers  upon  railroads," 
approved  April  14,  1910,  contained  a  proviso  in 
substance  that  the  fact  that  a  movement  of  a  car 
defective  as  to  safety  appliances  was  made  for 
the  purpose  of  repair,  and  that  such  movement  was 
permitted  by  the  Act  without  rendering  the  carrier 
liable  for  penalties,  should  not  constitute  a  de- 
fense to  the  liability  of  the  carrier  to  any  employee 
injured  by  such  movement.     Congress  evidently 


TO   INTERSTATE   EMPLOYEES  307 

believed  that  such  a  movement  was  interstate  and 
was  within  the  legitimate  field  of  its  power  and 
authority. 

If  the  rule  laid  down  in  the  Siegel  Case  should 
be  sustained,  the  trainmen,  switchmen,  and  yard- 
men would  be  deprived  of  the  protection  which 
Congress  has  expressly  intended  to  confer  upon 
them,  and  would  be  compelled  to  bear  without 
requital  the  burden  of  injuries  in  yard  or  switch- 
ing movements  of  manifestly  defective  cars.  Such 
movements  are  within  the  protection  of  the  Act. 
Chief  Justice  Fuller  said,  in  Johnson  v.  Southern 
Pacific  Co.,  196  U.  S.  1,  25  Sup.  Ct.  Rep.  158: 
"Confessedly  this  dining  car  was  under  the  con- 
trol of  Congress  while  in  the  act  of  making  its  in- 
terstate journey,  and  in  our  judgment  was  equally 
so  when  waiting  for  the  train  to  be  made  up  for  the 
next  trip.  It  was  being  regularly  used  in  the  move- 
ment of  interstate  traffic  and  so  within  the  law." 

Baker,  C.  J.,  in  Wabash  R.  Co.  v.  United  States, 
168  Fed.  Rep.  1,  said:  "The  risks  incurred  in 
coupling  and  uncoupling  are  more  imminent  on 
switching  tracks  where  trains  are  made  up  and  dis- 
tributed than  on  the  main  lines.  It  is  not  rea- 
sonable to  suppose  that  Congress  intended  to 
cover  only  the  smaller  part  of  the  dangers." 

For  other  cases  that  yard  movements  and  switch- 
ing movements  are  within  the  scope  of  the  Act, 
see  Crawford  v.  New  York  C.  &   H.  R.  R.  Co., 


308  LIABILITY  OF   RAILROADS 

reported  in  10  Am.  Neg.  Rep.  166.  Mobile,  J.,  & 
K.  C.  R.  Co.  v.  Bromberg,  37  Southern  Rep.  395; 
United  States  v.  Southern  Pacific  Co.,  Kent's 
Index-Digest,  288. 

If  a  car  engaged  in  interstate  commerce  be- 
comes defective  so  as  to  give  rise  to  an  action  for 
an  injury  caused  by  such  defect  at  any  step  of 
its  journey  on  the  main  line  or  in  a  switching  yard, 
how  does  the  determination  to  repair  it  or  the 
movement  to  repair  it  deprive  the  car  of  its 
interstate  character  ? 

While  such  a  car  is  in  an  interstate  train,  is 
being  taken  out  of  an  interstate  train,  or  is  being 
prepared  for  coupling  to  a  locomotive  or  is  being 
uncoupled  from  a  locomotive,  such  locomotive 
being  generally  used  in  interstate  commerce,  or 
if  such  defective  car  is  one  generally  used  in  inter- 
state traffic,  at  no  such  time  can  the  defective  car 
be  said  to  have  lost  its  interstate  character  or  to 
be  beyond  the  power  of  control  by  Congress. 

Such  a  car  certainly  cannot  be  said  to  have  lost 
its  interstate  character  while  it  remains  loaded 
with  any  portion  of  its  interstate  traffic.  If  un- 
loaded, and  in  the  course  of  a  journey  to  another 
State  diverted  temporarily  for  repair,  it  is  not 
deprived  of  its  interstate  character  by  any  such 
temporary  diversion.  This  can  no  more  be  true 
than  that  its  interstate  character  is  lost  by  any 
stoppage  on  the  road.     There  is  no   particular 


TO   INTERSTATE   EMPLOYEES  309 

local  sanctity  to  a  delay  for  repair  which  will 
make  such  delay  operative  to  deprive  a  car  of  its 
interstate  character,  while  during  all  other  delays 
in  transit  the  interstate  character  of  a  journey 
which  is  under  way  shall  remain. 

The  true  intent  of  the  Safety  Appliance  Acts  is 
not  carried  out,  the  remedial  feature  of  these  Acts, 
which  is  their  dominant  feature,  is  not  sustained 
by  an  interpretation,  which  excludes  from  legal  pro- 
tection any  employee  injured  by  a  defective  car  at 
any  time  until  such  car  is  segregated  and  isolated 
from  all  other  interstate  cars.  When  so  isolated 
no  necessity  for  coupling  or  uncoupling  exists. 

While  its  relation  to  other  interstate  cars  pre- 
sents any  necessity  for  an  operative  coupler,  the 
protection  of  the  statute  should  apply  to  all  whose 
duty  to  the  railroad  requires  them  to  manipulate 
the  coupling  or  uncoupling  apparatus,  or  to  assist 
in  the  movement  of  the  car  with  the  utilization  of 
such  substitutes  for  the  automatic  couplers  as 
the  necessities  of  the  situation  make  requisite. 
This  is  the  test  of  the  scope  of  the  statute. 

Any  narrowing  of  the  application  of  the  Safety 
Appliance  statute,  or  any  attempt  at  minimizing 
its  protection  to  railroad  employees,  after  the 
Supreme  Court  in  three  important  cases  has  de- 
clared for  a  broad  and  liberal  interpretation  of 
the  Act  to  carry  out  the  true  intent  and  purpose 
of    Congress,    cannot    be   justified.      Johnson   v. 


310  LIABILITY   OF   RAILROADS 

Southern  Pacific  Co.,  196  U.  S.  1,  25  Sup.  Ct.  Rep. 
158;  Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co.,  205 
U.  S.  1,  27  Sup.  Ct.  Rep.  407;  St.  Louis  I.  M.  & 
S.  Ry.  Co.  v.  Taylor,  210  U.  S.  281,  28  Sup.  Ct. 
Rep.  616. 

Coupling  or  uncoupling  a  car  on  a  repair  track 
is  as  dangerous  as  when  attempted  anywhere  else 
upon  a  railroad.  A  car  is  certainly  in  "use"  when 
employees  are  called  upon  to  couple  it  or  un- 
couple it,  even  for  repairs.  While  any  necessity 
exists  for  coupling  or  uncoupling  a  car  for  any 
purpose  on  an  interstate  railroad,  such  car  is  in 
"use"  within  the  meaning  of  the  law.  Whenever 
any  of  the  purposes  or  uses  of  an  interstate  railroad 
require  an  operative  automatic  coupler  for  the 
safety  of  employees  using  or  handling  such  car, 
the  absence  of  such  operative  coupler  cannot 
be  excused. 

To  relieve  the  railroads  from  the  stringency 
of  this  rule,  so  far  as  the  same  is  applicable  to 
penalty  suits,  Congress  passed  the  Act  of  April 
14,  1910.1 

This  Act  permits  a  railroad,  under  the  limited 
circumstances  therein  prescribed,  to  move  a  car 
for  the  purposes  of  repair,  without  incurring  the 
penalty  which  would  otherwise  accrue  from  such 
use  of  the  car. 

1  The  full  text  of  this  statute  will  be  found  on  pp.  328  of 
the  Appendix. 


TO   INTERSTATE   EMPLOYEES  311 

But  the  Congress  particularly  and  expressly 
provided  that  such  a  movement  in  any  action 
for  death  or  injury  of  an  employee  "should  be  at 
the  sole  risk  of  the  carrier."  In  Senate  Report 
No.  250,  61st  Congress,  2d  Session,  The  Commit- 
tee on  Foreign  and  Interstate  Commerce  says: 
"As  there  is  danger  in  the  movement  of  such 
defective  cars,  and  as  trainmen  are  obliged  to 
handle  them  without  any  real  option  on  their 
part  so  to  do,  it  is  but  just  and  equitable  that  the 
risk  attendant  upon  such  movement,  where  death 
or  injury  to  trainmen  results,  should  be  borne 
by  the  carrier  and  not  in  any  degree  assumed  by 
the  trainmen.  In  removing  the  penalty  for  the 
hauling  of  such  a  defective  car,  when  necessary, 
to  a  repair  shop,  it  is  intended  by  the  terms  of  the 
proviso  to  preserve  intact  and  unimpaired  all 
the  rights  now  existing  by  law  to  the  trainman 
or  his  representative,  to  recover  in  case  of  injury 
or  death  resulting  from  the  peril  of  participating  in 
the  movement  of  such  a  defective  car.  It  is  but 
just  that  the  risk  of  working  about,  and  the 
movement  of,  defective  equipment  should  be 
borne  by  the  carriers." 

This  seems  to  make  clear  the  congressional 
intent  to  make  the  carrier  an  insurer  of  its  em- 
ployees who  may  be  called  upon  to  handle  cars, 
the  safety  appliances  of  which  are  defective. 


312  LIABILITY   OF   RAILROADS 

§  68.  Defects  in  Violation  of  Safety  Appli- 
ance Acts. 
Civil  actions  under  the  Safety  Appliance  Acts 
for  redress  for  injuries  received  on  interstate 
railroads  by  employees  may  be  maintained  when 
the  injury  is  the  result  of  either  of  the  following 
causes : 

I.  Absence  of  automatic  coupler,  or  absence  of 
or  defects  in  any  vital  part  of  the  coupler  mechan- 
ism.   The  most  common  of  these  defects  are: 

a.  Coupler  body  broken,  h.  Lock  block  missing, 

b.  Knuckle  broken,  i.  Knuckle  pin  missing, 

c.  Knuckle  pin  broken,  j.  Lock  block  key  missing, 

d.  Lock  block  broken,  k.  Lock  block  trigger  miss- 

e.  Lock  block  bent,  ing 

f.  Guard  arm  short,  1.  Lock  block  inoperative, 

g.  Knuckle  missing,  m.  Knuckle  pin  bent. 

II.  Defects  in  uncoupling  mechanism. 

a.  Lock  link  broken,  g.    Uncoupling     chain     too 

b.  Uncoupling  lever  broken,  long, 

c.  Uncoupling  chain  broken,  h.   Uncoupling     chain     too 

d.  End     lock     or     casting  short, 

broken,  i.    Uncoupling    lever    miss- 

e.  Keeper  broken,  ing, 

f .  Uncoupling  lever  bent,  j .    Lock  link  missing, 

k.   Uncoupling  chain  kinked. 

III.  Defects  in  height  of  couplers.  See  Taylor 
Case,  210  U.  S.  281;  28  Sup.  Ct.  Rep.  618.  But 
see  also  Regulation  of  Interstate  Commerce  Com- 


TO   INTERSTATE   EMPLOYEES  313 

mission  adopted  October  10,  1910,  pursuant  to 
section  3  of  the  Act  of  Congress  entitled  "An  Act 
to  supplement  'An  Act  to  promote  the  safety  of 
employees  and  travelers  upon  railroads  by  com- 
pelling common  carriers  engaged  in  interstate 
commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes  and  their  loco- 
motives with  driving-wheel  brakes  and  for  other 
purposes,'  and  other  safety  appliance  Acts,  and 
for  other  purposes,"  approved  April  14,  1910,  a 
copy  of  which  will  be  found  in  the  Appendix, 
page  328. 

IV.  Absence  of  or  defects  in  handholds.  As 
the  statute  uses  the  terms  "handholds  in  the  ends 
and  sides  of  each  car,"  compliance  with  it  requires 
at  least  one  grab  iron  or  handhold  on  each  end 
and  on  each  side  of  each  car.  United  States  v.  L. 
&  N.  R.  Co.,  156  Fed.  Rep.  193;  United  States  v. 
Chicago  &  N.  W.  Ry.  Co.,  157  Fed.  Rep.  616; 
Dawson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  114  Fed. 
Rep.  870;  United  States  v.  Boston  &  M.  R.  Co.,  168 
Fed.  Rep.  148;  United  States  v.  Wabash-Pittsburgh 
Term.  Ry.  Co.,  Kent's  Index-Digest,  285.  Such 
violations  may  consist  either  in: 

a.  End  handhold  missing,  c.   Handhold  bent,  broken, 

b.  Side  handhold  missing,  or  loose. 

V.  Absence  of  or  insufficiency  of  power  or  train 
brakes. 


314  LIABILITY  OF   RAILROADS 

By  an  order  of  the  Interstate  Commerce  Com- 
mission, dated  June  6,  1910,  made  in  accordance 
with  the  provisions  of  section  2  of  the  Act  of 
March  2,  1903,  trains  must  be  equipped  with  a 
minimum  of  eighty-jive  per  cent  of  air-braked 
cars.  The  full  text  of  this  order  will  be  found  on 
page  345  of  the  Appendix. 

In  cases  arising  because  of  failure  of  engineer 
to  check  the  speed  of  his  train  in  any  emergency, 
the  question  of  the  sufficiency  and  the  operative 
condition  of  the  air  brakes  in  at  least  eighty-five 
per  cent  of  the  cars  may  be  of  importance,  because 
if  the  federal  law  in  this  respect  is  not  complied 
with,  contributory  negligence  as  a  defense  will 
be  eliminated. 

Can  there  be  a  recovery  where  men  are  injured 
by  falling  from  cars  on  which  they  were  ordered  to 
use  the  hand  brakes?  This  question  is  now  before 
the  courts,  whether  such  requirement  of  men  to 
go  up  on  the  cars  to  operate  the  hand  brakes  is  a 
violation  of  the  Safety  Appliance  statute. 

The  United  States  instituted  a  suit  against  the 
Baltimore  &  Ohio  Railroad  in  the  Western  District 
of  Pennsylvania,  176  Fed.  Rep.  114.  Judge  Orr, 
in  that  case,  held  that  the  requirement  by  the 
railroad  that  men  go  up  on  the  tops  of  freight  cars 
to  operate  the  hand  brakes  is  not  a  violation  of 
the  statute,  and  the  judgment  therein  has  been 
sustained  by  the  Circuit  Court  of  Appeals  for 


TO   INTERSTATE  EMPLOYEES  315 

the  Third  Circuit.  It  should  be  noted,  however, 
that  the  decision  of  the  appellate  court  was  ren- 
dered solely  on  technical  grounds  and  without 
consideration  of  the  merits. 

There  are  so  many  cases  of  men  killed  or  injured 
by  falling  from  cars  that  the  question  of  the  law- 
fulness of  requiring  them  to  go  upon  the  cars  to 
use  the  hand  brakes  is  important  in  determining 
the  liability  of  railroads  for  such  death  or  injuries. 
If  such  requirement  is  a  violation  of  the  statute, 
then  as  no  contributory  negligence  or  assumption 
of  risk  can  avail  the  railroad,  there  would  seem  to 
be  full  liability  for  such  casualties. 

Where  the  full  capacity  of  the  brakes  in  all  the 
air-braked  cars  is  not  available  to  check  speed,  by 
reason  of  air  brakes  in  air-braked  cars  being  out 
of  repair,  or  having  for  any  cause  their  air  brakes 
"  cut  out "  and  not  operated,  and  this  lack  of 
capacity  to  check  speed  leads  to  an  accident  to  an 
employee  within  the  protection  of  the  Act,  the 
question  involved  in  the  prosecution  of  the  case 
against  the  Baltimore  &  Ohio  Railroad,  may  be 
of  importance.  See  Lyon  v.  Charleston  &  W.  C. 
Ry.  Co.,  56  S.  E.  Rep.  18. 

VIII.  And  after  July  1,  1911,  on  new  cars 
put  in  service  after  October  13,  1910  as  provided 
for  in  section  2  of  the  Act  of  Congress,  April  14, 
1910,  any  non-compliance  with  the  terms  and 
conditions  of  the  Order  of  October  13,  1910,  of 


316  LIABILITY  OF  RAILROADS 

the  Interstate  Commerce  Commission,  relating 
to  hand  brakes,  running  boards,  ladders,  sill  steps, 
clearance,  etc.,  will  entitle  an  employee  injured 
by  reason  of  such  non  compliance  to  maintain  his 
action  under  the  Safety  Appliance  Acts. 


APPENDIX 

EMPLOYERS'  LIABILITY  ACT  OF  1906 

(34  U.  S.  Stat,  at  L.  232,  c.  3073) 

[Held  unconstitutional  in  the  States  (207  U.  S.  463),  but  valid 
in  the  Territories  and  in  the  District  of  Columbia  (215  U.  S.  87)]. 

An  Act  Relating  to  liability  of  common  carriers  in  the  Dis- 
trict of  Columbia  and  Territories  and  common  carriers 
engaged  in  commerce  between  the  States  and  between 
the  States  and  foreign  nations  to  their  employees. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  every  common  carrier  engaged  in  trade  or 
commerce  in  the  District  of  Columbia,  or  in  any  Ter- 
ritory of  the  United  States,  or  between  the  several 
States,  or  between  any  Territory  and  another,  or  be- 
tween any  Territory  or  Territories  and  any  State  or 
States,  or  the  District  of  Columbia,  or  with  foreign 
nations,  or  between  the  District  of  Columbia  and  any 
State  or  States  or  foreign  nations,  shall  be  liable  to  any 
of  its  employees,  or,  in  the  case  of  his  death,  to  his  per- 
sonal representative  for  the  benefit  of  his  widow  and 
children,  if  any,  if  none,  then  for  his  parents,  if  none, 
then  for  his  next  of  kin  dependent  upon  him,  for  all 
damages  which  may  result  from  the  negligence  of  any 
of  its  officers,  agents,  or  employees,  or  by  reason  of  any 
defect  or  insufficiency  due  to  its  negligence  in  its  cars, 


7 


318  APPENDIX 

engines,  appliances,  machinery,  track,  roadbed,  ways, 
or  works. 

Sec.  2.  That  in  all  actions  hereafter  brought  against 
any  common  carriers  to  recover  damages  for  personal 
injuries  to  an  employee,  or  where  such  injuries  have 
resulted  in  his  death,  the  fact  that  the  employee  may 
have  been  guilty  of  contributory  negligence  shall  not 
bar  a  recovery  where  his  contributory  negligence  was 
slight  and  that  of  the  employer  was  gross  in  comparison, 
but  the  damages  shall  be  diminished  by  the  jury  in 
proportion  to  the  amount  of  negligence  attributable  to 
such  employee.  All  questions  of  negligence  and  con- 
tributory negligence  shall  be  for  the  jury. 

Sec.  3.  That  no  contract  of  employment,  insurance, 
relief  benefit,  or  indemnity  for  injury  or  death  entered 
into  by  or  on  behalf  of  any  employee,  nor  the  accept- 
ance of  any  such  insurance,  relief  benefit,  or  indemnity 
by  the  person  entitled  thereto,  shall  constitute  any  bar 
or  defense  to  any  action  brought  to  recover  damages 
for  personal  injuries  to  or  death  of  such  employee: 
Provided,  however,  That  upon  the  trial  of  such  action 
against  any  common  carrier  the  defendant  may  set  off 
therein  any  sum  it  has  contributed  toward  any  such 
insurance,  relief  benefit,  or  indemnity  that  may  have 
been  paid  to  the  injured  employee,  or,  in  case  of  his 
death,  to  his  personal  representative. 

Sec.  4.  That  no  action  shall  be  maintained  under 
this  Act,  unless  commenced  within  one  year  from  the 
time  the  cause  of  action  accrued. 

Sec.  5.  That  nothing  in  this  Act  shall  be  held  to 
limit  the  duty  of  common  carriers  by  railroads  or  impair 
the  rights  of  their  employees  under  the  safety-appliance 
Act  of  March  second,  eighteen  hundred  and  ninety- 
three,  us  amended  April  first,  eighteen  hundred  and 


EMPLOYERS'  LIABILITY  ACT  OF   1908        319 

ninety-six,  and  March  second,  nineteen  hundred  and 
three. 
Approved,  June  11,  1906. 

EMPLOYERS'  LIABILITY  ACT  OF  1908 

(35  U.  S.  Stat,  at  L.  65  c.  149) 

An  Act  Relating  to  the  liability  of  common  carriers  by  rail- 
road to  their  employees  in  certain  cases. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  every  common  carrier  by  railroad  while  en- 
gaging in  commerce  between  any  of  the  several  States 
or  Territories,  or  between  any  of  the  States  and  Terri- 
tories, or  between  the  District  of  Columbia  and  any  of 
the  States  or  Territories,  or  between  the  District  of 
Columbia  or  any  of  the  States  or  Territories  and  any 
foreign  nation  or  nations,  shall  be  liable  in  damages 
to  any  person  suffering  injury  while  he  is  employed  by 
such  carrier  in  such  commerce,  or,  in  case  of  the  death 
of  such  employee,  to  his  or  her  personal  representative, 
for  the  benefit  of  the  surviving  widow  or  husband  and 
children  of  such  employee;  and,  if  none,  then  of  such 
employee's  parents;  and,  if  none,  then  of  the  next  of 
kin  dependent  upon  such  employee,  for  such  injury  or 
death  resulting  in  whole  or  in  part  from  the  negligence 
of  any  of  the  officers,  agents,  or  employees  of  such  car- 
rier, or  by  reason  of  any  defect  or  insufficiency,  due  to 
its  negligence,  in  its  cars,  engines,  appliances,  ma- 
chinery, track,  roadbed,  works,  boats,  wharves,  or  other 
equipment. 

Sec.  2.  That  every  common  carrier  by  railroad  in 
the  Territories,  the  District  of  Columbia,  the  Panama 


320  APPENDIX 

Canal  Zone,  or  other  possessions  of  the  United  States, 
shall  be  liable  in  damages  to  any  person  suffering  injury 
while  he  is  employed  by  such  carrier  in  any  of  said 
jurisdictions,  or,  in  case  of  the  death  of  such  employee, 
to  his  or  her  personal  representative,  for  the  benefit  of 
the  surviving  widow  or  husband  and  children  of  such 
employee;  and,  if  none,  then  of  such  employee's  par- 
ents; and,  if  none,  then  of  the  next  of  kin  dependent 
upon  such  employee,  for  such  injury  or  death  resulting 
in  whole  or  in  part  from  the  negligence  of  any  of 
the  officers,  agents,  or  employees  of  such  carrier,  or 
by  reason  of  any  defect  or  insufficiency,  due  to  its 
negligence,  in  its  cars,  engines,  appliances,  machin- 
ery, track,  roadbed,  works,  boats,  wharves,  or  other 
equipment. 

Sec.  3.  That  in  all  actions  hereafter  brought  against 
any  such  common  carrier  by  railroad  under  or  by  virtue 
of  any  of  the  provisions  of  this  Act  to  recover  damages 
for  personal  injuries  to  an  employee,  or  where  such 
injuries  have  resulted  in  his  death,  the  fact  that  the 
employee  may  have  been  guilty  of  contributory  neg- 
ligence shall  not  bar  a  recovery,  but  the  damages 
shall  be  diminished  by  the  jury  in  proportion  to  the 
amount  of  negligence  attributable  to  such  employee: 
Provided,  That  no  such  employee  who  may  be  injured 
or  killed  shall  be  held  to  have  been  guilty  of  contribu- 
tory negligence  in  any  case  where  the  violation  by 
such  common  carrier  of  any  statute  enacted  for  the 
safety  of  employees  contributed  to  the  injury  or  death 
of  such  employee. 

Sec.  4.  That  in  any  action  brought  against  any 
common  carrier  under  or  by  virtue  of  any  of  the  pro- 
visions of  this  Act  to  recover  damages  for  injuries  to, 
or  the  death  of,  any  of  its  employees,  such  employee 


EMPLOYERS'  LIABILITY  ACT  OF   1908        321 

shall  not  be  held  to  have  assumed  the  risks  of  his  em- 
ployment in  any  case  where  the  violation  by  such  com- 
mon carrier  of  any  statute  enacted  for  the  safety  of 
employees  contributed  to  the  injury  or  death  of  such 
employee. 

Sec.  5.  That  any  contract,  rule,  regulation,  or  device 
whatsoever,  the  purpose  or  intent  of  which  shall  be  to 
enable  any  common  carrier  to  exempt  itself  from  any 
liability  created  by  this  Act,  shall  to  that  extent  be 
void:  Provided,  That  in  any  action  brought  against 
any  such  common  carrier  under  or  by  virtue  of  any  of 
the  provisions  of  this  Act,  such  common  carrier  may 
set  off  therein  any  sum  it  has  contributed  or  paid  to 
any  insurance,  relief  benefit,  or  indemnity  that  may 
have  been  paid  to  the  injured  employee  or  the  person 
entitled  thereto  on  account  of  the  injury  or  death  for 
which  said  action  was  brought. 

Sec.  6.  That  no  action  shall  be  maintained  under 
this  Act  unless  commenced  within  two  years  from  the 
day  the  cause  of  action  accrued. 

Sec.  7.  That  the  term  "common  carrier"  as  used 
in  this  Act  shall  include  the  receiver  or  receivers  or 
other  persons  or  corporations  charged  with  the  duty 
of  the  management  and  operation  of  the  business  of 
a  common  carrier. 

Sec.  8.  That  nothing  in  this  Act  shall  be  held  to 
limit  the  duty  or  liability  of  common  carriers  or  to 
impair  the  rights  of  their  employees  under  any  other 
Act  or  Acts  of  Congress,  or  to  affect  the  prosecution  of 
any  pending  proceeding  or  right  of  action  under  the 
Act  of  Congress  entitled  "An  Act  relating  to  liability 
of  common  carriers  in  the  District  of  Columbia  and 
Territories,  and  to  common  carriers  engaged  in  com- 
merce between  the  States  and  between  the  States  and 


322  APPENDIX 

foreign  nations  to  their  employees,"   approved  June 
eleventh,  nineteen  hundred  and  six. 
Approved,  April  22,  1908. 

EMPLOYERS'  LIABILITY  ACT    AMENDMENT   OF  1910 

An  Act  To  amend  an  Act  entitled  "  An  Act  relating  to  the 
liability  of  common  carriers  by  railroad  to  their  employees 
in  certain  cases,"  approved  April  twenty-second,  nine- 
teen hundred  and  eight. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  an  Act  entitled  "An  Act  relating  to  the  liability 
of  common  carriers  by  railroad  to  their  employees  in 
certain  cases,"  approved  April  twenty-second,  nineteen 
hundred  and  eight,  be  amended  in  section  six  so  that 
said  section  shall  read: 

"Sec.  6.  That  no  action  shall  be  maintained  under 
this  Act  unless  commenced  within  two  years  from  the 
day  the  cause  of  action  accrued. 

"Under  this  Act  an  action  may  be  brought  in  a 
circuit  court  of  the  United  States,  in  the  district  of  the 
residence  of  the  defendant,  or  in  which  the  cause  of 
action  arose,  or  in  which  the  defendant  shall  be  doing 
business  at  the  time  of  commencing  such  action.  The 
jurisdiction  of  the  courts  of  the  United  States  under 
this  Act  shall  be  concurrent  with  that  of  the  courts  of 
the  several  States,  and  no  case  arising  under  this  Act 
and  brought  in  any  state  court  of  competent  jurisdic- 
tion shall  be  removed  to  any  court  of  the  United 
States." 

Sec.  2.  That  said  Act  be  further  amended  by  adding 
the  following  section  as  section  nine  of  said  Act: 

"Sec.  9.  That  any  right  of  action  given  by  this 
Act  to  a  person  suffering  injury  shall  survive  to  his  or 


SAFETY  APPLIANCE  ACTS  323 

her  personal  representative,  for  the  benefit  of  the  sur- 
viving widow  or  husband  and  children  of  such  employee, 
and,  if  none,  then  of  such  employee's  parents;  and,  if 
none,  then  of  the  next  of  kin  dependent  upon  such 
employee,  but  in  such  cases  there  shall  be  only  one 
recovery  for  the  same  injury." 
Approved,  April  5,  1910. 

SAFETY  APPLIANCE  ACTS 

Law  of  1893  with  amendment. 

[27  Stat.  at.  L.  531,  c.  196.     Amended   as  to 
Sec.  6  by  29  U.  S.  Stat,  at  L.  85,  c.  87.] 

An  act  To  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged 
in  interstate  commerce  to  equip  their  cars  with  auto- 
matic couplers  and  continuous  brakes  and  their  locomo- 
tives with  driving-wheel  brakes,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  from  and  after  the  first  day  of  January,  eighteen 
hundred  and  ninety-eight,  it  shall  be  unlawful  for  any 
common  carrier  engaged  in  interstate  commerce  by 
railroad  to  use  on  its  line  any  locomotive  engine  in 
moving  interstate  traffic  not  equipped  with  a  power 
driving-wheel  brake  and  appliances  for  operating  the 
train-brake  system  or  to  run  any  train  in  such  traffic 
after  said  date  that  has  not  a  sufficient  number  of  cars 
in  it  so  equipped  with  power  or  train  brakes  that  the 
engineer  on  the  locomotive  drawing  such  train  can  con- 
trol its  speed  without  requiring  brakemen  to  use  the 
common  hand  brake  for  that  purpose. 

Sec.  2.    That  on  and  after  the  first  day  of  January, 


324  APPENDIX 

eighteen  hundred  and  ninety-eight,  it  shall  be  unlawful 
for  any  such  common  carrier  to  haul  or  permit  to  be 
hauled  or  used  on  its  line  any  car  used  in  moving  inter- 
state traffic  not  equipped  with  couplers  coupling  auto- 
matically by  impact,  and  which  can  be  uncoupled 
without  the  necessity  of  men  going  between  the  ends  of 
the  cars. 

Sec,  3.  That  when  any  person,  firm,  company,  or 
corporation  engaged  in  interstate  commerce  by  rail- 
road shall  have  equipped  a  sufficient  number  of  its 
cars  so  as  to  comply  with  the  provisions  of  section  one 
of  this  act,  it  may  lawfully  refuse  to  receive  from  con- 
necting lines  of  road  or  shippers  any  cars  not  equipped 
sufficiently,  in  accordance  with  the  first  section  of  this 
act,  with  such  power  or  train  brakes  as  will  work  and 
readily  interchange  with  the  brakes  in  use  on  its  own 
cars,  as  required  by  this  act. 

Sec.  4.  That  from  and  after  the  first  day  of  July, 
eighteen  hundred  and  ninety-five,  until  otherwise  or- 
dered by  the  Interstate  Commerce  Commission,  it 
shall  be  unlawful  for  any  railroad  company  to  use  any 
car  in  interstate  commerce  that  is  not  provided  with 
secure  grab  irons  or  handholds  in  the  ends  and  sides  of 
each  car  for  greater  security  to  men  in  coupling  and 
uncoupling  cars. 

Sec.  5.  That  within  ninety  days  from  the  passage  of 
this  act  the  American  Railway  Association  is  authorized 
hereby  to  designate  to  the  Interstate  Commerce  Com- 
mission the  standard  height  of  drawbars  for  freight 
cars,  measured  perpendicular  from  the  level  of  the 
tops  of  the  rails  to  the  centers  of  the  drawbars,  for  each 
of  the  several  gauges  of  railroads  in  use  in  the  United 
States,  and  shall  fix  a  maximum  variation  from  such 
standard  height  to  be  allowed  between  the  drawbars 


SAFETY  APPLIANCE  ACTS  325 

of  empty  and  loaded  cars.  Upon  their  determination 
being  certified  to  the  Interstate  Commerce  Commission, 
said  commission  shall  at  once  give  notice  of  the  standard 
fixed  upon  to  all  common  carriers,  owners,  or  lessees 
engaged  in  interstate  commerce  in  the  United  States 
by  such  means  as  the  commission  may  deem  proper. 
But  should  said  association  fail  to  determine  a  standard 
as  above  provided,  it  shall  be  the  duty  of  the  Interstate 
Commerce  Commission  to  do  so,  before  July  first, 
eighteen  hundred  and  ninety-four,  and  immediately  to 
give  notice  thereof  as  aforesaid.  And  after  July  first, 
eighteen  hundred  and  ninety-five,  no  cars,  either  loaded 
or  unloaded,  shall  be  used  in  interstate  traffic  which 
do  not  comply  with  the  standard  above  provided  for. 

Sec.  6.  (As  amended  April  1,  1896.)  29  Stat,  at 
L.  85.  That  any  such  common  carrier  using  any  loco- 
motive engine,  running  any  train,  or  hauling  or  per- 
mitting to  be  hauled  or  used  on  its  line  any  car  in  viola- 
tion of  any  of  the  provisions  of  this  act,  shall  be  liable 
to  a  penalty  of  one  hundred  dollars  for  each  and  every 
such  violation,  to  be  recovered  in  a  suit  or  suits  to  be 
brought  by  the  United  States  district  attorney  in  the 
district  court  of  the  United  States  having  jurisdiction 
in  the  locality  where  such  violation  shall  have  been 
committed;  and  it  shall  be  the  duty  of  such  district 
attorney  to  bring  such  suits  upon  duly  verified  informa- 
tion being  lodged  with  him  of  such  violation  having  oc- 
curred; and  it  shall  also  be  the  duty  of  the  Interstate 
Commerce  Commission  to  lodge  with  the  proper  dis- 
trict attorneys  information  of  any  such  violations  as 
may  come  to  its  knowledge:  Provided,  That  nothing 
in  this  act  contained  shall  apply  to  trains  composed  of 
four-wheel  cars  or  to  trains  composed  of  eight-wheel 
standard  logging  cars  where  the  height  of  such  car 


326  APPENDIX 

from  top  of  rail  to  center  of  coupling  does  not  exceed 
twenty-five  inches,  or  to  locomotives  used  in  hauling 
such  trains  when  such  cars  or  locomotives  are  exclu- 
sively used  for  the  transportation  of  logs. 

Sec.  7.  That  the  Interstate  Commerce  Commission 
may  from  time  to  time  upon  full  hearing  and  for  good 
cause  extend  the  period  within  which  any  common 
carrier  shall  comply  with  the  provisions  of  this  act. 

Sec.  8.  That  any  employee  of  any  such  common 
carrier  who  may  be  injured  by  any  locomotive,  car,  or 
train  in  use  contrary  to  the  provision  of  this  act  shall 
not  be  deemed  thereby  to  have  assumed  the  risk  thereby 
occasioned,  although  continuing  in  the  employment  of 
such  carrier  after  the  unlawful  use  of  such  locomotive, 
car,  or  train  had  been  brought  to  his  knowledge. 

Approved,  March  2,  1893  ;  amended,  April  1,  1896. 

SAFETY  APPLIANCE  ACT  AMENDMENT  OF  1903 
[32  Stat,  at  L.  943,  c.  976.] 

An  Act  To  amend  an  act  entitled  "  An  Act  to  promote  the 
safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  com- 
merce to  equip  their  cars  with  automatic  couplers  and 
continuous  brakes  and  their  locomotives  with  driving- 
wheel  brakes,  and  for  other  purposes,"  approved  March 
second,  eighteen  hundred  and  ninety-three,  and  amended 
April  first,  eighteen  hundred  and  ninety-six. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  the  provisions  and  requirements  of  the  Act  en- 
titled "An  Act  to  promote  the  safety  of  employees  and 
travelers  upon  railroads  by  compelling  common  carriers 
engaged  in  interstate  commerce  to  equip  their  cars 
with  automatic  couplers  and  continuous  brakes  and 


SAFETY  APPLIANCE  ACT  AMENDMENT   1903     327 

their  locomotives  with  driving-wheel  brakes,  and  for 
other  purposes,"  approved  March  second,  eighteen 
hundred  and  ninety-three,  and  amended  April  first, 
eighteen  hundred  and  ninety-six,  shall  be  held  to  apply 
to  common  carriers  by  railroads  in  the  Territories  and 
the  District  of  Columbia  and  shall  apply  in  all  cases, 
whether  or  not  the  couplers  brought  together  are  of  the 
same  kind,  make,  or  type,  and  the  provisions  and  re- 
quirements hereof  and  of  said  Acts  relating  to  train 
brakes,  automatic  couplers,  grab  irons,  and  the  height 
of  drawbars  shall  be  held  to  apply  to  all  trains,  locomo- 
tives, tenders,  cars,  and  similar  vehicles  used  on  any 
railroad  engaged  in  interstate  commerce,  and  in  the 
Territories  and  the  District  of  Columbia,  and  to  all 
other  locomotives,  tenders,  cars,  and  similar  vehicles 
used  in  connection  therewith,  excepting  those  trains, 
cars,  and  locomotives  exempted  by  the  provisions  of 
section  six  of  said  Act  of  March  second,  eighteen  hun- 
dred and  ninety-three,  as  amended  by  the  Act  of  April 
first,  eighteen  hundred  and  ninety-six,  or  which  are 
used  upon  street  railways. 

Sec.  2.  That  whenever,  as  provided  in  said  Act,  any 
train  is  operated  with  power  or  train  brakes,  not  less  than 
fifty  per  centum  of  the  cars  in  such  train  shall  have  their 
brakes  used  and  operated  by  the  engineer  of  the  loco- 
motive drawing  such  train;  and  all  power-braked  cars 
in  such  train  which  are  associated  together  with  said 
fifty  per  centum  shall  have  their  brakes  so  used  and 
operated;  and,  to  more  fully  carry  into  effect  the  ob- 
jects of  said  Act,  the  Interstate  Commerce  Commission 
may,  from  time  to  time,  after  full  hearing,  increase 
the  minimum  percentage  of  cars  in  any  train  required 
to  be  operated  with  power  or  train  brakes  which  must 
have  their  brakes  used  and  operated  as  aforesaid ;  and 


328  APPENDIX 

failure  to  comply  with  any  such  requirement  of  the  said 
Interstate  Commerce  Commission  shall  be  subject  to 
the  like  penalty  as  failure  to  comply  with  any  require- 
ment of  this  section. 

Sec.  3.  That  the  provisions  of  this  Act  shall  not 
take  effect  until  September  first,  nineteen  hundred  and 
three.  Nothing  in  this  Act  shall  be  held  or  construed 
to  relieve  any  common  carrier,  the  Interstate  Commerce 
Commission,  or  any  United  States  district  attorney  from 
any  of  the  provisions,  powers,  duties,  liabilities,  or  re- 
quirements of  said  Act  of  March  second,  eighteen  hun- 
dred and  ninety-three,  as  amended  by  the  Act  of  April 
first,  eighteen  hundred  and  ninety-six;  and  all  of  the 
provisions,  powers,  duties,  requirements  and  liabilities 
of  said  Act  of  March  second,  eighteen  hundred  and 
ninety-three,  as  amended  by  the  Act  of  April  first, 
eighteen  hundred  and  ninety-six,  shall,  except  as  spe- 
cifically amended  by  this  Act,  apply  to  this  Act. 

Approved  March  2,  1903. 

SAFETY  APPLIANCE  ACT  AMENDMENT  OF  1910 

An  Act  To  supplement  "  An  Act  to  promote  the  safety  of 
employees  and  travelers  upon  railroads  by  compelling 
common  carriers  engaged  in  interstate  commerce  to 
equip  their  cars  with  automatic  couplers  and  continuous 
brakes  and  their  locomotives  with  driving  wheel  brakes 
and  for  other  purposes,"  and  other  safety  appliance  Acts, 
and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  the  provisions  of  this  Act  shall  apply  to  every  com- 
mon carrier  and  every  vehicle  subject  to  the  Act  of 
March  second,  eighteen  hundred  and  ninety-three,  as 
amended  April  first,  eighteen  hundred  and  ninety-six, 


SAFETY  APPLIANCE  ACT  AMENDMENT   1910     329 

and  March  second,  nineteen  hundred  and  three,  com- 
monly known  as  the  "Safety  Appliance  Acts." 

Sec.  2.  That  on  and  after  July  first,  nineteen  hun- 
dred and  eleven,  it  shall  be  unlawful  for  any  common 
carrier  subject  to  the  provisions  of  this  Act  to  haul, 
or  permit  to  be  hauled  or  used  on  its  line  any  car 
subject  to  the  provisions  of  this  Act  not  equipped 
with  appliances  provided  for  in  this  Act,  to  wit:  All 
cars  must  be  equipped  with  secure  sill  steps  and 
efficient  hand  brakes;  all  cars  requiring  secure  ladders 
and  secure  running  boards  shall  be  equipped  with 
such  ladders  and  running  boards,  and  all  cars  having 
ladders  shall  also  be  equipped  with  secure  hand  holds 
or  grab  irons  on  their  roofs  at  the  tops  of  such  ladders: 
Provided,  That  in  the  loading  and  hauling  of  long  com- 
modities, requiring  more  than  one  car,  the  hand  brakes 
may  be  omitted  on  all  save  one  of  the  cars  while  they 
are  thus  combined  for  such  purpose. 

Sec.  3.  That  within  six  months  from  the  passage 
of  this  Act  the  Interstate  Commerce  Commission, 
after  hearing,  shall  designate  the  number,  dimensions, 
location,  and  manner  of  application  of  the  appliances 
provided  for  by  section  two  of  this  Act  and  section 
four  of  the  Act  of  March  second,  eighteen  hundred  and 
ninety-three,  and  shall  give  notice  of  such  designation 
to  all  common  carriers  subject  to  the  provisions  of 
this  Act  by  such  means  as  the  commission  may  deem 
proper,  and  thereafter  said  number,  location,  dimen- 
sions, and  manner  of  application  as  designated  by  said 
commission  shall  remain  as  the  standards  of  equipment 
to  be  used  on  all  cars  subject  to  the  provisions  of  this 
Act,  unless  changed  by  an  order  of  said  Interstate 
Commerce  Commission,  to  be  made  after  full  hear- 
ing and  for  good  cause  shown;  and  failure  to  comply 


330  APPENDIX 

with  any  such  requirement  of  the  Interstate  Commerce 
Commission  shall  be  subject  to  a  like  penalty  as  failure 
to  comply  with  any  requirement  of  this  Act :  Provided, 
That  the  Interstate  Commerce  Commission  may,  upon 
full  hearing  and  for  good  cause,  extend  the  period 
within  which  any  common  carrier  shall  comply  with 
the  provisions  of  this  section  with  respect  to  the  equip- 
ment of  cars  actually  in  service  upon  the  date  of  the 
passage  of  this  Act.  Said  commission  is  hereby  given 
authority,  after  hearing,  to  modify  or  change,  and  to 
prescribe  the  standard  height  of  draw  bars  and  to  fix 
the  time  within  which  such  modification  or  change  shall 
become  effective  and  obligatory,  and  prior  to  the  time 
so  fixed  it  shall  be  unlawful  to  use  any  car  or  vehicle  in 
interstate  or  foreign  traffic  which  does  not  comply  with 
the  standard  now  fixed  or  the  standard  so  prescribed, 
and  after  the  time  so  fixed  it  shall  be  unlawful  to  use 
any  car  or  vehicle  in  interstate  or  foreign  traffic  which 
does  not  comply  with  the  standard  so  prescribed  by  the 
commission. 

Sec.  4.  That  any  common  carrier  subject  to  this 
Act  using,  hauling,  or  permitting  to  be  used  or  hauled 
on  its  line,  any  car  subject  to  the  requirements  of  this 
Act  not  equipped  as  provided  in  this  Act,  shall  be  liable 
to  a  penalty  of  one  hundred  dollars  for  each  and  every 
such  violation,  to  be  recovered  as  provided  in  section 
six  of  the  Act  of  March  second,  eighteen  hundred  and 
ninety-three,  as  amended  April  first,  eighteen  hundred 
and  ninety-six :  Provided,  That  where  any  car  shall  have 
been  properly  equipped,  as  provided  in  this  Act  and  the 
other  Acts  mentioned  herein,  and  such  equipment  shall 
have  become  defective  or  insecure  while  such  car  was 
being  used  by  such  carrier  upon  its  line  of  railroad,  such 
cur  may  tic  hauled  from  the  place  where  such  equip- 


SAFETY  APPLIANCE  ACT  AMENDMENT   1910     331 

ment  was  first  discovered  to  be  defective  or  insecure 
to  the  nearest  available  point  where  such  car  can  be 
repaired,  without  liability  for  the  penalties  imposed  by- 
section  four  of  this  Act  or  section  six  of  the  Act  of  March 
second,  eighteen  hundred  and  ninety-three  as  amended 
by  the  Act  of  April  first,  eighteen  hundred  and  ninety- 
six,  if  such  movement  is  necessary  to  make  such  repairs 
and  such  repairs  can  not  be  made  except  at  such  repair 
point;  and  such  movement  or  hauling  of  such  car  shall 
be  at  the  sole  risk  of  the  carrier,  and  nothing  in  this 
section  shall  be  construed  to  relieve  such  carrier  from 
liability  in  any  remedial  action  for  the  death  or  injury 
of  any  railroad  employee  caused  to  such  employee  by 
reason  of  or  in  connection  with  the  movement  or  haul- 
ing of  such  car  with  equipment  which  is  defective  or 
insecure  or  which  is  not  maintained  in  accordance 
with  the  requirements  of  this  Act  and  the  other  Acts 
herein  referred  to;  and  nothing  in  this  proviso  shall  be 
construed  to  permit  the  hauling  of  defective  cars  by 
means  of  chains  instead  of  drawbars,  in  revenue  trains 
or  in  association  with  other  cars  that  are  commercially 
used,  unless  such  defective  cars  contain  live  stock  or 
"perishable"  freight. 

Sec.  5.  That  except  that,  within  the  limits  specified 
in  the  preceding  section  of  this  Act,  the  movement  of 
a  car  with  defective  or  insecure  equipment  may  be 
made  without  incurring  the  penalty  provided  by  the 
statutes,  but  shall  in  all  other  respects  be  unlawful, 
nothing  in  this  Act  shall  be  held  or  construed  to  relieve 
any  common  carrier,  the  Interstate  Commerce  Com- 
mission, or  any  United  States  attorney  from  any  of 
the  provisions,  powers,  duties,  liabilities,  or  require- 
ments of  said  Act  of  March  second,  eighteen  hundred 
and  ninety-three,  as  amended  by  the  Acts  of  April 


332  APPENDIX 

first,  eighteen  hundred  and  ninety-six,  and  March 
second,  nineteen  hundred  and  three;  and,  except  as 
aforesaid,  all  of  the  provisions,  powers,  duties,  require- 
ments, and  liabilities  of  said  Act  of  March  second, 
eighteen  hundred  and  ninety-three,  as  amended  by  the 
Acts  of  April  first,  eighteen  hundred  and  ninety-six, 
and  March  second,  nineteen  hundred  and  three,  shall 
apply  to  this  Act. 

Sec.  6.  That  it  shall  be  the  duty  of  the  Interstate 
Commerce  Commission  to  enforce  the  provisions  of  this 
Act,  and  all  powers  heretofore  granted  to  said  commis- 
sion are  hereby  extended  to  it  for  the  purpose  of  the 
enforcement  of  this  Act.1 

Approved,  April  14,  1910. 

1  The  Act  permits  an  extension  of  the  period  for  compliance 
with  its  provisions  "to  the  equipment  of  cars  actually  in  service 
upon  the  dale  of  the  passage  of  this  Act."  As  no  standards  were, 
however,  fixed  under  the  Act  until  October  13,  1910,  it  was  im- 
possible for  the  railroads  to  comply  with  its  terms  as  to  new  cars 
placed  in  service  between  April  14,  1910,  and  October  13,  1910. 
Legislation  to  remedy  this  was  recommended  in  the  Annual  Report 
to  Congress  of  the  Interstate  Commerce  Commission  for  1910. 

By  a  paragraph  in  the  "Act  making  appropriations  for  sundry 
civil  expenses  of  the  Government  for  the  fiscal  year  ending 
June  thirtieth  nineteen  hundred  and  twelve,  and  for  other  pur- 
poses," approved  March  4,  1911,  it  was  provided  that  the  juris- 
diction of  the  Interstate  Commerce  Commission  to  extend  the 
period  within  which  any  common  carrier  shall  comply  with  the 
provisions  of  section  three  of  the  Act  approved  April  14,  1910, 
should  apply  to  cars  actually  placed  in  service  between  the  date 
of  the  passage  of  said  Act  (April  14,  1910)  and  the  first  day  of 
July,  1911,  in  the  same  manner  and  to  the  same  extent  that  it 
applies  to  cars  actually  in  service  upon  the  date  of  the  passage 
of  said  Act. 

An  order  of  the  Interstate  Commerce  Commission  of  March 
13,  1911,  extends  the  period  of  time  within  which  common  carriers 
shall  comply  with  the  provisions  of  section  three  of  the  Act  of 


ACT  IN   "FORMA   PAUPERIS"  333 


ACT   IN   "FORMA  PAUPERIS" 

An  Act  To  amend  section  one,  chapter  two  hundred  and  nine, 
of  the  United  States  Statutes  at  Large,  volume  twenty- 
seven,  entitled  "  An  Act  providing  when  plaintiff  may 
sue  as  a  poor  person  and  when  counsel  shall  be  assigned 
by  the  court,"  and  to  provide  for  the  prosecution  of 
writs  of  error  and  appeals  in  forma  pauperis,  and  for 
other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  section  one  of  an  Act  entitled  "An  Act  providing 
when  plaintiff  may  sue  as  a  poor  person  and  when  coun- 
sel shall  be  assigned  by  the  court,"  approved  July 
twentieth,  eighteen  hundred  and  ninety-two,  be,  and 
the  same  is  hereby,  amended  so  as  to  read  as  follows: 

"That  any  citizen  of  the  United  States  entitled  to 
commence  or  defend  any  suit  or  action,  civil  or  criminal, 
in  any  court  of  the  United  States,  may,  upon  the  order 
of  the  court,  commence  and  prosecute  or  defend  to 
conclusion  any  suit  or  action,  or  a  writ  of  error,  or  an 
appeal  to  the  circuit  court  of  appeals,  or  to  the  Supreme 
Court  in  such  suit  or  action,  including  all  appellate  pro- 
ceedings, unless  the  trial  court  shall  certify  in  writing 
that  in  the  opinion  of  the  court  such  appeal  or  writ  of 

Congress  approved  April  14,  1910  in  respect  to  the  equipment 
of  cars  in  service  on  the  first  day  of  July,  1911. 

Another  order  of  the  Interstate  Commerce  Commission  of 
March  13,  1911  designates  in  accordance  with  the  Act  of  Con- 
gress approved  April  14,  1910,  the  number,  dimensions,  location, 
and  manner  of  application  of  the  safety  appliances  mentioned 
in  said  Act,  including  hand-brakes,  brake-steps,  running  boards, 
sill-steps,  ladders,  roof  handholds,  side  handholds,  horizontal 
end  handholds,  vertical  end  handholds,  end  platform  hand- 
holds, uncoupling-levers,  caboose  platform  steps,  tender  sill- 
steps,  pilot  sill-steps,  pilot  beam  handholds,  footboards,  hand- 
rails and  steps  for  headlights,  and  end  ladder  clearance. 


334  APPENDIX 

error  is  not  taken  in  good  faith,  without  being  required 
to  prepay  fees  or  costs  or  for  the  printing  of  the  record 
in  the  appellate  court  or  give  security  therefor,  before 
or  after  bringing  suit  or  action,  or  upon  suing  out  a 
writ  of  error  or  appealing,  upon  filing  in  said  court  a 
statement  under  oath  in  writing  that  because  of  his 
poverty  he  is  unable  to  pay  the  costs  of  said  suit  or 
action  or  of  such  writ  of  error. or  appeal,  or  to  give  se- 
curity for  the  same,  and  that  he  believes  that  he  is 
entitled  to  the  redress  he  seeks  by  such  suit  or  action 
or  writ  of  error  or  appeal,  and  setting  forth  briefly  the 
nature  of  his  alleged  cause  of  action,  or  appeal." 
Approved,  June  25,  1910. 


LOCOMOTIVE  ASH  PAN  ACT 

35  U.  S.  Stat,  at  L.  476,  c.  225 
An  Act  To  promote  the  safety  of  employees  on  railroads. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  asse?n- 
bled,  That  on  and  after  the  first  day  of  January,  nineteen 
hundred  and  ten,  it  shall  be  unlawful  for  any  common 
carrier  engaged  in  interstate  or  foreign  commerce  by 
railroad  to  use  any  locomotive  in  moving  interstate  or 
foreign  traffic,  not  equipped  with  an  ash  pan,  which 
can  be  dumped  or  emptied  and  cleaned  without  the  ne- 
cessity of  any  employee  going  under  such  locomotive. 

Sec.  2.  That  on  and  after  the  first  day  of  January, 
nineteen  hundred  and  ten,  it  shall  be  unlawful  for  any 
common  carrier  by  railroad  in  any  Territory  of  the 
United  States  or  the  District  of  Columbia  to  use  any 
locomotive  not  equipped  with  an  ash  pan,  which  can 


LOCOMOTIVE  ASH  PAN  ACT  335 

be  dumped  or  emptied  and  cleaned  without  the  neces- 
sity of  any  employee  going  under  such  locomotive. 

Sec.  3.  That  any  such  common  carrier  using  any 
locomotive  in  violation  of  any  of  the  provisions  of  this 
Act  shall  be  liable  to  a  penalty  of  two  hundred  dollars 
for  each  and  every  such  violation,  to  be  recovered  in 
a  suit  or  suits  to  be  brought  by  the  United  States  dis- 
trict attorney  in  the  district  court  of  the  United  States 
having  jurisdiction  in  the  locality  where  such  violation 
shall  have  been  committed;  and  it  shall  be  the  duty 
of  such  district  attorney  to  bring  such  suits  upon  duly 
verified  information  being  lodged  with  him  of  such 
violation  having  occurred;  and  it  shall  also  be  the  duty 
of  the  Interstate  Commerce  Commission  to  lodge  with 
the  proper  district  attorneys  information  of  any  such 
violations  as  may  come  to  its  knowledge. 

Sec.  4.  That  it  shall  be  the  duty  of  the  Interstate 
Commerce  Commission  to  enforce  the  provisions  of 
this  Act,  and  all  powers  heretofore  granted  to  said 
Commission  are  hereby  extended  to  it  for  the  purpose 
of  the  enforcement  of  this  Act. 

Sec.  5.  That  the  term  "common  carrier"  as  used 
in  this  Act  shall  include  the  receiver  or  receivers  or 
other  persons  or  corporations  charged  with  the  duty 
of  the  management  and  operation  of  the  business  of  a 
common  carrier. 

Sec.  6.  That  nothing  in  this  Act  contained  shall 
apply  to  any  locomotive  upon  which,  by  reason  of  the 
use  of  oil,  electricity,  or  other  such  agency,  an  ash  pan 
is  not  necessary. 

Approved,  May  30,  1908. 


336  APPENDIX 

HOURS   OF  SERVICE   ACT 

34  U.  S.  Stat,  at  L.  1415,  1416,  c.  2939 

An  Act  To  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  limiting  the  hours  of  service  of  em- 
ployees thereon. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  the  provisions  of  this  Act  shall  apply  to  any 
common  carrier  or  carriers,  their  officers,  agents,  and 
employees,  engaged  in  the  transportation  of  passengers 
or  property  by  railroad  in  the  District  of  Columbia  or 
any  Territory  of  the  United  States,  or  from  one  State 
or  Territory  of  the  United  States  or  the  District  of 
Columbia  to  any  other  State  or  Territory  of  the  United 
States  or  the  District  of  Columbia,  or  from  any  place 
in  the  United  States  to  an  adjacent  foreign  country,  or 
from  any  place  in  the  United  States  through  a  foreign 
country  to  any  other  place  in  the  United  States.  The 
term  "railroad"  as  used  in  this  Act  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with 
any  railroad,  and  also  all  the  road  in  use  by  any  com- 
mon carrier  operating  a  railroad,  whether  owned  or 
operated  under  a  contract,  agreement,  or  lease;  and 
the  term  "employees"  as  used  in  this  Act  shall  be  held 
to  mean  persons  actually  engaged  in  or  connected  with 
the  movement  of  any  train. 

Sec.  2.  That  it  shall  be  unlawful  for  any  common 
carrier,  its  officers  or  agents,  subject  to  this  Act  to  re- 
quire or  permit  any  employee  subject  to  this  Act  to 
be  or  remain  on  duty  for  a  longer  period  than  sixteen 
consecutive  hours,  and  whenever  any  such  employee 
of  such  common  carrier  shall  have  been  continuously 


HOURS  OF  SERVICE  ACT  337 

on  duty  for  sixteen  hours  he  shall  be  relieved  and  not 
required  or  permitted  again  to  go  on  duty  until  he  has 
had  at  least  ten  consecutive  hours  off  duty;  and  no 
such  employee  who  has  been  on  duty  sixteen  hours  in 
the  aggregate  in  any  twenty-four-hour  period  shall  be 
required  or  permitted  to  continue  or  again  go  on  duty 
without  having  had  at  least  eight  consecutive  hours  off 
duty:  Provided,  That  no  operator,  train  dispatcher, 
or  other  employee  who  by  the  use  of  the  telegraph  or 
telephone  dispatches,  reports,  transmits,  receives,  or 
delivers  orders  pertaining  to  or  affecting  train  move- 
ments shall  be  required  or  permitted  to  be  or  remain 
on  duty  for  a  longer  period  than  nine  hours  in  any 
twenty-four-hour  period  in  all  towers,  offices,  places, 
and  stations  continuously  operated  night  and  day,  nor 
for  a  longer  period  than  thirteen  hours  in  all  towers, 
offices,  places,  and  stations  operated  only  during  the 
daytime,  except  in  case  of  emergency,  when  the  em- 
ployees named  in  this  proviso  may  be  permitted  to 
be  and  remain  on  duty  for  four  additional  hours  in  a 
twenty-four-hour  period  on  not  exceeding  three  days 
in  any  week:  Provided  further,  The  Interstate  Com- 
merce Commission  may  after  full  hearing  in  a  par- 
ticular case  and  for  good  cause  shown  extend  the  period 
within  which  a  common  carrier  shall  comply  with  the 
provisions  of  this  proviso  as  to  such  case. 

Sec.  3.  That  any  such  common  carrier,  or  any 
officer  or  agent  thereof,  requiring  or  permitting  any 
employee  to  go,  be,  or  remain  on  duty  in  violation  of 
the  second  section  hereof,  shall  be  liable  to  a  penalty 
of  not  to  exceed  five  hundred  dollars  for  each  and 
every  violation,  to  be  recovered  in  a  suit  or  suits  to  be 
brought  by  the  United  States  district  attorney  in  the 
district  court  of  the  United  States  having  jurisdiction 


338  APPENDIX 

in  the  locality  where  such  violation  shall  have  been 
committed;  and  it  shall  be  the  duty  of  such  district 
attorney  to  bring  such  suits  upon  satisfactory  informa- 
tion being  lodged  with  him;  but  no  such  suit  shall  be 
brought  after  the  expiration  of  one  year  from  the  date 
of  such  violation;  and  it  shall  also  be  the  duty  of  the 
Interstate  Commerce  Commission  to  lodge  with  the 
proper  district  attorneys  information  of  any  such 
violations  as  may  come  to  its  knowledge.  In  all  prose- 
cutions under  this  Act  the  common  carrier  shall  be 
deemed  to  have  had  knowledge  of  all  acts  of  all  its 
officers  and  agents:  Provided,  That  the  provisions  of 
this  Act  shall  not  apply  in  any  case  of  casualty  or  un- 
avoidable accident  or  the  act  of  God;  nor  where  the 
delay  was  the  result  of  a  cause  not  known  to  the  carrier 
or  its  officer  or  agent  in  charge  of  such  employee  at 
the  time  said  employee  left  a  terminal,  and  which 
could  not  have  been  foreseen:  Provided  further,  That 
the  provisions  of  this  Act  shall  not  apply  to  the  crews 
of  wrecking  or  relief  trains. 

Sec.  4.  It  shall  be  the  duty  of  the  Interstate  Com- 
merce Commission  to  execute  and  enforce  the  pro- 
visions of  this  Act,  and  all  powers  granted  to  the  In- 
terstate Commerce  Commission  are  hereby  extended 
to  it  in  the  execution  of  this  Act. 

Sec.  5.  That  this  Act  shall  take  effect  and  be  in 
force  one  year  after  its  passage. 

Approved,  March  4,  1907,  11.50  a.  m. 


BOILER  INSPECTION   LAW  339 

BOILER  INSPECTION  LAW 

36  U.  S.  Stat,  at  L.  913 

An  Act  To  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged 
in  interstate  commerce  to  equip  their  locomotives  with 
safe  and  suitable  boilers  and  appurtenances  thereto. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  the  provisions  of  this  Act  shall  apply  to  any 
common  carrier  or  carriers,  their  officers,  agents,  and 
employees,  engaged  in  the  transportation  of  passengers 
or  property  by  railroad  in  the  District  of  Columbia, 
or  in  any  Territory  of  the  United  States,  or  from  one 
State  or  Territory  of  the  United  States  or  the  District 
of  Columbia  to  any  other  State  or  Territory  of  the 
United  States  or  the  District  of  Columbia,  or  from  any 
place  in  the  United  States  to  an  adjacent  foreign  coun- 
try, or  from  any  place  in  the  United  States  through  a 
foreign  country  to  any  other  place  in  the  United  States. 
The  term  "railroad"  as  used  in  this  Act  shall  include 
all  the  roads  in  use  by  any  common  carrier  operating 
a  railroad,  whether  owned  or  operated  under  a  contract, 
agreement,  or  lease,  and  the  term  " employees"  as 
used  in  this  Act  shall  be  held  to  mean  persons  actually 
engaged  in  or  connected  with  the  movement  of  any 
train. 

Sec.  2.  That  from  and  after  the  first  day  of  July, 
nineteen  hundred  and  eleven,  it  shall  be  unlawful  for 
any  common  carrier,  its  officers  or  agents,  subject  to 
this  Act  to  use  any  locomotive  engine  propelled  by 
steam  power  in  moving  interstate  or  foreign  traffic 
unless  the  boiler  of  said  locomotive  and  appurtenances 


340  APPENDIX 

thereof  are  in  proper  condition  and  safe  to  operate  in 
the  service  to  which  the  same  is  put,  that  the  same 
may  be  employed  in  the  active  service  of  such  carrier 
in  moving  traffic  without  unnecessary  peril  to  life  or 
limb,  and  all  boilers  shall  be  inspected  from  time  to 
time  in  accordance  with  the  provisions  of  this  Act, 
and  be  able  to  withstand  such  test  or  tests  as  may 
be  prescribed  in  the  rules  and  regulations  hereinafter 
provided  for. 

Sec.  3.  That  there  shall  be  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate, 
a  chief  inspector  and  two  assistant  chief  inspectors  of 
locomotive  boilers,  who  shall  have  general  superin- 
tendence of  the  inspectors  hereinafter  provided  for, 
direct  them  in  the  duties  hereby  imposed  upon  them, 
and  see  that  the  requirements  of  this  Act  and  the  rules, 
regulations,  and  instructions  made  or  given  hereunder 
are  observed  by  common  carriers  subject  hereto.  The 
said  chief  inspector  and  his  two  assistants  shall  be 
selected  with  reference  to  their  practical  knowledge  of 
the  construction  and  repairing  of  boilers,  and  to  their 
fitness  and  ability  to  systematize  and  carry  into  effect 
the  provisions  hereof  relating  to  the  inspection  and 
maintenance  of  locomotive  boilers.  The  chief  inspector 
shall  receive  a  salary  of  four  thousand  dollars  per  year 
and  the  assistant  chief  inspectors  shall  each  receive  a 
salary  of  three  thousand  dollars  per  year;  and  each  of 
the  three  shall  be  paid  his  traveling  expenses  incurred 
in  the  performance  of  his  duties.  The  office  of  the 
chief  inspector  shall  be  in  Washington,  District  of 
Columbia,  and  the  Interstate  Commerce  Commission 
shall  provide  such  stenographic  and  clerical  help  as 
the  business  of  the  offices  of  the  chief  inspector  and 
his  said  assistants  may  require. 


BOILER  INSPECTION  LAW  341 

Sec.  4.  That  immediately  after  his  appointment 
and  qualification  the  chief  inspector  shall  divide  the 
territory  comprising  the  several  States,  the  Territories 
of  New  Mexico  and  Arizona,  and  the  District  of 
Columbia  into  fifty  locomotive  boiler-inspection  dis- 
tricts, so  arranged  that  the  service  of  the  inspector 
appointed  for  each  district  shall  be  most  effective, 
and  so  that  the  work  required  of  each  inspector  shall 
be  substantially  the  same.  Thereupon  there  shall  be 
appointed  by  the  Interstate  Commerce  Commission 
fifty  inspectors  of  locomotive  boilers.  Said  inspectors 
shall  be  in  the  classified  service  and  shall  be  appointed 
after  competitive  examination  according  to  the  law 
and  the  rules  of  the  Civil  Service  Commission  govern- 
ing the  classified  service.  The  chief  inspector  shall 
assign  one  inspector  so  appointed  to  each  of  the  dis- 
tricts hereinbefore  named.  Each  inspector  shall  re- 
ceive a  salary  of  one  thousand  eight  hundred  dollars 
per  year  and  his  travelling  expenses  while  engaged  in 
the  performance  of  his  duty.  He  shall  receive  in  ad- 
dition thereto  an  annual  allowance  for  office  rent, 
stationery,  and  clerical  assistance,  to  be  fixed  by  the 
Interstate  Commerce  Commission,  but  not  to  exceed  in 
the  case  of  any  district  inspector  six  hundred  dollars 
per  year.  In  order  to  obtain  the  most  competent  in- 
spectors possible,  it  shall  be  the  duty  of  the  chief  in- 
spector to  prepare  a  list  of  questions  to  be  propounded 
to  applicants  with  respect  to  construction,  repair, 
operation,  testing,  and  inspection  of  locomotive  boilers, 
and  their  practical  experience  in  such  work,  which 
list,  being  approved  by  the  Interstate  Commerce  Com- 
mission, shall  be  used  by  the  Civil  Service  Commission 
as  a  part  of  its  examination.  No  person  interested, 
either  directly  or  indirectly,  in  any  patented  article 


342  APPENDIX 

required  to  be  used  on  any  locomotive  under  super- 
vision or  who  is  intemperate  in  his  habits  shall  be 
eligible  to  hold  the  office  of  either  chief  inspector  or 
assistant  or  district  inspector. 

Sec.  5.  That  each  carrier  subject  to  this  Act  shall 
file  its  rules  and  instructions  for  the  inspection  of  loco- 
motive boilers  with  the  chief  inspector  within  three 
months  after  the  approval  of  this  Act,  and  after 
hearing  and  approval  by  the  Interstate  Commerce 
Commission,  such  rules  and  instructions,  with  such 
modifications  as  the  commission  requires,  shall  become 
obligatory  upon  such  carrier:  Provided,  however,  That 
if  any  carrier  subject  to  this  Act  shall  fail  to  file  its 
rules  and  instructions  the  chief  inspector  shall  prepare 
rules  and  instructions  not  inconsistent  herewith  for 
the  inspection  of  locomotive  boilers,  to  be  observed  by 
such  carrier;  which  rules  and  instructions,  being  ap- 
proved by  the  Interstate  Commerce  Commission,  and 
a  copy  thereof  being  served  upon  the  president,  general 
manager,  or  general  superintendent  of  such  carrier, 
shall  be  obligatory,  and  a  violation  thereof  punished 
as  hereinafter  provided:  Provided  also,  That  such 
common  carrier  may  from  time  to  time  change  the 
rules  and  regulations  herein  provided  for,  but  such 
change  shall  not  take  effect  and  the  new  rules  and 
regulations  be  in  force  until  the  same  shall  have  been 
filed  with  and  approved  by  the  Interstate  Commerce 
Commission.  The v chief  inspector  shall  also  make  all 
needful  rules,  regulations,  and  instructions  not  incon- 
sistent herewith  for  the  conduct  of  his  office  and  for 
the  government  of  the  district  inspectors:  Provided, 
however,  That  all  such  rules  and  instructions  shall  be 
approved  by  the  Interstate  Commerce  Commission 
before  they  take  effect. 


BOILER  INSPECTION  LAW  343 

Sec.  6.  That  it  shall  be  the  duty  of  each  inspector 
to  become  familiar,  so  far  as  practicable,  with  the  con- 
dition of  each  locomotive  boiler  ordinarily  housed  or 
repaired  in  his  district,  and  if  any  locomotive  is  ordi- 
narily housed  or  repaired  in  two  or  more  districts, 
then  the  chief  inspector  or  an  assistant  shall  make 
such  division  between  inspectors  as  will  avoid  the  ne- 
cessity for  duplication  of  work.  Each  inspector  shall 
make  such  personal  inspection  of  the  locomotive  boilers 
under  his  care  from  time  to  time  as  may  be  necessary 
to  fully  carry  out  the  provisions  of  this  Act,  and  as 
may  be  consistent  with  his  other  duties,  but  he  shall 
not  be  required  to  make  such  inspections  at  stated 
times  or  at  regular  intervals.  His  first  duty  shall  be  to 
see  that  the  carriers  make  inspections  in  accordance 
with  the  rules  and  regulations  established  or  approved 
by  the  Interstate  Commerce  Commission,  and  that 
carriers  repair  the  defects  which  such  inspections  dis- 
close before  the  boiler  or  boilers  or  appurtenances 
pertaining  thereto  are  again  put  in  service.  To  this 
end  each  carrier  subject  to  this  Act  shall  file  with  the 
inspector  in  charge,  under  the  oath  of  the  proper  officer 
or  employee,  a  duplicate  of  the  report  of  each  inspec- 
tion required  by  such  rules  and  regulations,  and  shall 
also  file  with  such  inspector,  under  the  oath  of  the 
proper  officer  or  employee,  a  report  showing  the  repair 
of  the  defects  disclosed  by  the  inspection.  The  rules 
and  regulations  hereinbefore  provided  for  shall  pre- 
scribe the  time  at  which  such  reports  shall  be  made. 
Whenever  any  district  inspector  shall,  in  the  perform- 
ance of  his  duty,  find  any  locomotive  boiler  or  apparatus 
pertaining  thereto  not  conforming  to  the  requirements 
of  the  law  or  the  rules  and  regulations  established  and 
approved  as  hereinbefore  stated,  he  shall  notify  the 


344  APPENDIX 

carrier  in  writing  that  the  locomotive  is  not  in  ser- 
viceable condition,  and  thereafter  such  boiler  shall 
not  be  used  until  in  serviceable  condition:  Provided, 
That  a  carrier,  when  notified  by  an  inspector  in  writ- 
ing that  a  locomotive  boiler  is  not  in  serviceable  con- 
dition, because  of  defects  set  out  and  described  in  said 
notice,  may  within  five  days  after  receiving  said 
notice,  appeal  to  the  chief  inspector  by  telegraph  or 
by  letter  to  have  said  boiler  reexamined,  and  upon 
receipt  of  the  appeal  from  the  inspector's  decision, 
the  chief  inspector  shall  assign  one  of  the  assistant 
chief  inspectors  or  any  district  inspector  other  than 
the  one  from  whose  decision  the  appeal  is  taken  to  re- 
examine and  inspect  said  boiler  within  fifteen  days 
from  date  of  notice.  If  upon  such  reexamination  the 
boiler  is  found  in  serviceable  condition,  the  chief  in- 
spector shall  immediately  notify  the  carrier  in  writing, 
whereupon  such  boiler  may  be  put  into  service  with- 
out further  delay;  but  if  the  reexamination  of  said 
boiler  sustains  the  decision  of  the  district  inspector, 
the  chief  inspector  shall  at  once  notify  the  carrier  own- 
ing or  operating  such  locomotive  that  the  appeal  from 
the  decision  of  the  inspector  is  dismissed,  and  upon 
the  receipt  of  such  notice  the  carrier  may,  within  thirty 
days,  appeal  to  the  Interstate  Commerce  Commission, 
and  upon  such  appeal,  and  after  hearing,  said  Com- 
mission shall  have  power  to  revise,  modify,  or  set  aside 
such  action  of  the  chief  inspector  and  declare  that 
said  locomotive  is  in  serviceable  condition  and  au- 
thorize the  same  to  be  operated:  Provided  further, 
That  pending  either  appeal  the  requirements  of  the 
inspector  shall  be  effective. 

Sec.  7.     That   the   chief   inspector   shall   make   an 
annual  report  to  the  Interstate  Commerce  Commis- 


BOILER   INSPECTION   LAW  345 

sion  of  the  work  done  during  the  year,  and  shall  make 
such  recommendations  for  the  betterment  of  the  ser- 
vice as  he  may  desire. 

Sec.  8.  That  in  the  case  of  accident  resulting  from 
failure  from  any  cause  of  a  locomotive  boiler  or  its 
appurtenances,  resulting  in  serious  injury  or  death  to 
one  or  more  persons,  a  statement  forthwith  must  be 
made  in  writing  of  the  fact  of  such  accident,  by  the 
carrier  owning  or  operating  said  locomotive,  to  the 
chief  inspector.  Whereupon  the  facts  concerning  such 
accident  shall  be  investigated  by  the  chief  inspector 
or  one  of  his  assistants,  or  such  inspector  as  the  chief 
inspector  may  designate  for  that  purpose.  And  where 
the  locomotive  is  disabled  to  the  extent  that  it  can 
not  be  run  by  its  own  steam,  the  part  or  parts  affected 
by  the  said  accident  shall  be  preserved  by  said  carrier 
intact,  so  far  as  possible,  without  hindrance  or  inter- 
ference to  traffic  until  after  said  inspection.  The  chief 
inspector  or  an  assistant  or  the  designated  inspector 
making  the  investigation,  shall  examine  or  cause  to  be 
examined  thoroughly  the  boiler  or  part  affected,  mak- 
ing full  and  detailed  report  of  the  cause  of  the  accident 
to  the  chief  inspector. 

The  Interstate  Commerce  Commission  may  at  any 
time  call  upon  the  chief  inspector  for  a  report  of  any 
accident  embraced  in  this  section,  and  upon  the  re- 
ceipt of  said  report,  if  it  deems  it  to  the  public  interest, 
make  reports  of  such  investigations,  stating  the  cause 
of  accident,  together  with  such  recommendations  as 
it  deems  proper.  Such  reports  shall  be  made  public 
in  such  manner  as  the  commission  deems  proper. 
Neither  said  report  nor  any  report  of  said  investiga- 
tion nor  any  part  thereof  shall  be  admitted  as  evi- 
dence or  used  for  any  purpose  in  any  suit  or  action 


346  APPENDIX 

for  damages  growing  out  of  any  matter  mentioned  in 
said  report  or  investigation. 

Sec.  9.  That  any  common  carrier  violating  this 
Act  or  any  rule  or  regulation  made  under  its  provisions 
or  any  lawful  order  of  any  inspector  shall  be  liable  to 
a  penalty  of  one  hundred  dollars  for  each  and  every 
such  violation,  to  be  recovered  in  a  suit  or  suits  to  be 
brought  by  the  United  States  attorney  in  the  district 
court  of  the  United  States  having  jurisdiction  in  the 
locality  where  such  violation  shall  have  been  com- 
mitted; and  it  shall  be  the  duty  of  such  attorneys, 
subject  to  the  direction  of  the  Attorney-General,  to 
bring  such  suits  upon  duly  verified  information  being 
lodged  with  them,  respectively,  of  such  violations 
having  occurred;  and  it  shall  be  the  duty  of  the  chief 
inspector  of  locomotive  boilers  to  give  information  to 
the  proper  United  States  attorney  of  all  violations  of 
this  Act  coming  to  his  knowledge. 

Sec.  10.  That  the  total  amounts  directly  appro- 
priated to  carry  out  the  provisions  of  this  Act  shall  not 
exceed  for  any  one  fiscal  year  the  sum  of  three  hun- 
dred thousand  dollars. 

Approved,  February  17,  1911. 

ORDER   OF   THE   INTERSTATE   COMMERCE  COM- 
MISSION,   JUNE   6,    1910 

In  the  Matter  of  Requiring  an  Increase  in  the 
Minimum  Percentage  of  Power  Brakes 

The  Commission  having  under  consideration  the 
question  of  requiring  an  increase  in  the  minimum  per- 
centage  of  power  brakes  to  be  used  and  operated  on 
trains  and  railroads  engaged  in  interstate  commerce, 
as  provided  by  section  2  of  the  Act  of  March  2,  1903, 


INTERSTATE   COMMERCE   COMMISSION      347 

and  it  appearing  to  the  Commission  after  full  hearing 
had  on  May  5,  1909,  due  notice  of  which  was  given  all 
common  carriers,  owners  and  lessees  engaged  in  inter- 
state commerce  by  railroad  in  the  United  States,  and 
at  which  time  all  interested  parties  were  given  an 
opportunity  to  be  heard  and  submit  their  views,  that 
to  more  fully  secure  the  objects  of  the  Act  to  promote 
the  safety  of  employees  and  travelers  on  railroads,  the 
minimum  percentage  of  power-brake  cars  to  be  used 
in  trains,  as  established  by  its  order  of  November  15, 
1905,  should  be  further  increased. 

It  is  ordered,  That  on  and  after  September  1,  1910, 
on  all  railroads  used  in  interstate  commerce,  when- 
ever, as  required  by  the  Safety  Appliance  Act  as 
amended  March  2,  1903,  any  train  is  operated  with 
power  or  train  brakes,  not  less  than  85%  of  the  cars  of 
such  train  shall  have  their  brakes  used  and  operated 
by  the  engineer  of  the  locomotive  drawing  such  train, 
and  all  power-brake  cars  in  every  such  train  which  are 
associated  together  with  the  85%  shall  have  their 
brakes  so  used  and  operated. 

ORDER   OF  THE   INTERSTATE   COMMERCE   COM- 
MISSION,  OCTOBER  10,    1910 

In  the  Matter  of  the  Standard  Height  of 
Drawbars 

Whereas,  by  the  third  section  of  an  Act  of  Congress 
approved  April  14,  1910,  entitled  "An  act  to  supple- 
ment 'An  act  to  promote  the  safety  of  employees  and 
travelers  upon  railroads  by  compelling  common  car- 
riers engaged  in  interstate  commerce  to  equip  their 
cars  with  automatic  couplers  and  continuous  brakes 
and  their  locomotives  with  driving-wheel  brakes  and 


348  APPENDIX 

for  other  purposes,'  and  other  safety  appliance  acts, 
and  for  other  purposes,"  it  is  provided,  among  other 
things,  that  the  Interstate  Commerce  Commission  is 
hereby  given  authority,  after  hearing,  to  modify  or 
change  and  to  prescribe  the  standard  height  of  draw- 
bars and  to  fix  the  time  within  which  such  modifica- 
tion or  change  shall  become  effective  and  obligatory, 
and 

Whereas,  a  hearing  in  the  matter  of  any  modifica- 
tion or  change  in  the  standard  height  of  drawbars  was 
held  before  the  Interstate  Commerce  Commission  at 
its  office  in  Washington,  D.  C,  on  June  7,  1910, 

Now,  therefore,  in  pursuance  of  and  in  accordance 
with  the  provisions  of  said  section  3  of  said  act, 

It  is  ordered,  That  (except  on  cars  specified  in  the 
proviso  in  section  6  of  the  Safety  Appliance  Act  of 
March  2,  1893,  as  the  same  was  amended  April  1,  1896), 
the  standard  height  of  drawbars  heretofore  designated 
in  compliance  with  law  is  hereby  modified  and  changed 
in  the  manner  hereinafter  prescribed  —  to  wit :  The 
maximum  height  of  drawbars  for  freight  cars  measured 
perpendicularly  from  the  level  of  the  tops  of  rails  to 
the  centers  of  drawbars  for  standard-gauge  railroads 
in  the  United  States  subject  to  said  Act  shall  be  34^ 
inches,  and  the  minimum  height  of  drawbars  for  freight 
cars  on  such  standard-gauge  railroads  measured  in 
the  same  manner  shall  be  31^  inches,  and  on  narrow- 
gauge  railroads  in  the  United  States  subject  to  said 
act  the  maximum  height  of  drawbars  for  freight  cars 
measured  from  the  level  of  the  tops  of  rails  to  the 
centers  of  drawbars  shall  be  26  inches,  and  the  mini- 
mum height  of  drawbars  for  freight  cars  on  such  narrow- 
gauge;  railroads  measured  in  the  same  manner  shall  be 
23  inches,  and  on  2-foot-gauge  railroads  in  the  United 


INTERSTATE  COMMERCE  COMMISSION      349 

States  subject  to  said  act  the  maximum  height  of 
drawbars  for  freight  cars  measured  from  the  level  of 
the  tops  of  rails  to  the  centers  of  drawbars  shall  be 
17^  inches,  and  the  minimum  height  of  drawbars  for 
freight  cars  on  such  2-foot-gauge  railroads  measured 
in  the  same  manner  shall  be  14|  inches. 

And  it  is  further  ordered,  That  such  modification  or 
change  shall  become  effective  and  obligatory  December 
31,  1910. 


INDEX 


INDEX 


ACCIDENTS' 

bulletin  of  United  States  Bureau  of  Labor  on,  52 

increasing,  180 

not  result  of  act  malum  in  se,  244 

number  of,  in  United  States,  52 
ACT   IN   "FORMA   PAUPERIS" 

summary,  130 

text  of,  333 
ACT  OF   CONGRESS 

supreme  over  state  laws,  66 

ACTION 

administrator,  not  widow,  to  bring,  63 

survival  of,  100 

under  two  thousand  dollars,  234-238 

uniformity  in  different  States  not  necessary  to  right  of,  232 

venue  of,  38,  100 

nature  of, 

new  plenary  action  authorized,  63 

rules  of  practice  and  procedure  dependent   on   district 

where  action  brought,  64 
substantive  rights  and  remedy  dependent  on  Act,  64 
ADMINISTRATOR 
action  by,  238 

damages  held  by,  in  trust,  270 
may  bring  suit,  270 
ADMIRALTY   LAWS 

congressional  power  over,  149,  150 
AIR    BRAKES 

eighty-five  per  cent  of  cars  to  be  equipped  with,  314 


354  INDEX 

ALGER,  GEORGE  W. 

in  "Moral  Overstrain,"  180 
ANIMALS 

act  to  prevent  cruelty  to,  in  transit,  237 
ANNUITY  TABLES,  128 
APPLIANCES 

action  authorized  for  defect  in,  37,  101 
(See  Safety  Appliances) 
ARKANSAS  STATUTE 

forbidding  screening  before  weighing  coal,  195 
ASH    PAN   LAW 

jurisdiction  under,  236 

summary,  117 

text  of,  334 
ASQUITH,   PREMIER 

opinion  of,  43,  56 
ASSUMPTION   OF  RISK 

abolished  where  safety  statute  violated,  58,  111 

employee  freed  from,  by  Act,  175 

included  all  perils  of  master's  business,  204 

legal  fiction,  49 

no  contract  for,  enforceable,  102,  103 

not  applied  while  car  moving  for  repair,  302 
under  Safety  Appliance  Acts,  286 
assented  to  by  employee,  176 
to  be  implied  under  section  1,  102 
voluntary,  50 

onerous  legal  fiction,  178,  179 
AUTOMATIC   COUPLER 

defects  in,  312 

BOATS 

action  authorized  for  defect  in,  37,  101 
BOILER  INSPECTION   LAW 

(See  Locomotive  Boiler  Inspection  Law) 
BRAKES 

power  or  train,  defects  in,  313 

(See  Air  Brakes) 


INDEX  355 

CALIFORNIA   STATUTE 

regulating  laundries,  constitutional,  192 

CARS 

action  authorized  for  defect  in,  37,  101 

"any  car"  defined,  290 

defects  in,  violating  Safety  Appliance  Acts,  list  of,  312-316 

eighty-five  per  cent  of,  to  be  air-braked,  314 
(See  Defective  Cars) 
CHILDREN 

survival  of  action  for  benefit  of,  100 
CIGARETTES 

sale  of,  without  license,  prohibited,  196 

CLASSIFICATION 

legislature  has  wide  discretion  in,  212 

CLASSIFICATION   OF  RAILROAD  EMPLOYEES 

adopted  in  England,  223 

exception  to  law  as  to  issue  of  passes,  223 

gives  remedy  only  to  injured  or  killed,  222 

judicially  adopted  in  fellow-servant  doctrine,  203-208 

limited  to  servants  engaged  in  interstate  commerce,  222 

may  include  those  not  exposed  to  peculiar  hazards,  215 

Minnesota  statute  excepting    certain  employees  constitu- 
tional, 213 

not  arbitrary,  214 

reasonable,  220 

state  statutes  adopting,  constitutional,  216 

urged  as  discriminatory,  202 
COMITY   BETWEEN   STATES,  257 
COMMERCE 

power  of  Congress  over,  defined,  153-155 

valid  regulation  of,  not  affected  by  freedom  of  contract,  187 
(See  Interstate  Commerce) 
COMMERCE   POWER 

real-estate  owner  may  be  restrained  under,  170 
COMMON   CARRIER 

shipper  not  on  equal  footing  with,  163 
COMMON   EMPLOYMENT 

(See  Fellow-servant  Doctrine) 


356  INDEX 

COMMON   LAW 

rule  of,  gives  no  vested  right,  172 

CONGRESS 

executed  contract  may  be  impaired  by,  158 

express  power  of,  not  impaired  by  freedom  of  contract,  185 

jurisdiction  of  federal  courts  determined  by,  250 

power  of,  over  commerce  denned,  153-155 

to  regulate  master  and  servant  in  interstate  com- 
merce, 133,  135-140 
regulations  of,  not  affected  by  private  contracts,  185 
rights  of,  under  express  powers,  paramount,  191,  234 
war  power  of,  240 

CONGRESSIONAL   INTENT 

as  to  Employers'  Liability  Act  of  1908,  39-42 
movement  of  defective  cars,  304-306,  310 
section  1  of  Act  of  1908,  109,  110 

CONSTITUTION 

loose  construction  of,  brought  about  by  freedom  of  con- 
tract, 199,  200 
sixth  article  of,  261 
state  courts  may  construe,  260 
supreme  law  of  United  States,  191 

CONSTITUTIONALITY    OF    EMPLOYERS'     LIABILITY 
ACT   OF   1908 
denied  in  Connecticut,  133 
objections  to,  133 
upheld  in  lower  federal  courts,  132,  133 

(See  Employers'  Liability  Act  of  1908) 

CONTRACTS 

obligation  of,  may  be  impaired  by  Congress,  159 
valid  when  made,  rendered  null  by  Congress,  198 
(See  Freedom  of  Contract;  Liberty  of  Contract;  Right 
of  Contract) 
CONTRIBUTION 

right  of,  left  to  employer,  244,  245 

CONTRIBUTORY   NEGLIGENCE 

abolished  as  defense  in  certain  cases,  37 

where  safety  statute  violated,  111 


INDEX  357 

CONTRIBUTORY  NEGLIGENCE  —  Continued 

available  as  defense  unless  excluded  by  statute,  120 

eliminated  if  air  brakes  insufficient,  314 

in  mitigation  of  damages,  38,  60 

no  defense,  where  statute  violated,  58 

under  Safety  Appliance  Acts,  288 
(See  Negligence) 
COOLEY,   JUDGE 

address  on  interstate  commerce,  68 

DAMAGES 

annuity  tables  used  in  computing,  128 

contributory  negligence  in  mitigation  of,  38,  60 

for  death  as  amended  in  1910,  127 
death  prior  to  Act  of  1910,  126 
personal  injuries,  126 

held  by  personal  representatives  in  trust,  270 

no  statutory  limit,  39 

under  $2,000  in  State  courts,  234-238 
DANGEROUS  TRADES 

wages,  not  higher  in,  47 
DEATH 

suit  for,  authorized,  38 
DEATHS   FROM    ACCIDENTS   TO   WAGE    EARNERS 

number  of,  in  United  States,  52 
DEFECTIVE   CARS 

amendment  of  1910  as  to,  306,  310 

congressional  intent  as  to  movement  of,  304-306,  310 

liability  for  injur}'  while  moving,  for  repair,  299-311 

movement  of,  interstate  commerce,  303,  306,  308,  309 
DEFECTS,  IN  VIOLATION  OF  SAFETY  APPLIANCE  ACTS 

list  of,  312-316 
DUE-PROCESS  CLAUSE 

complied  with  by  act,  171 

(See  Fifth  Amendment) 

ELY,   RICHARD  T. 

Outlines  of  Economics,  164 


358  INDEX 

EMPLOYEE 

has  no  opportunity  to  control  fellow-servant,  55,  56 
(See  also  Fellow-servant  Doctrine) 

EMPLOYEES 

what,  engaged  in  interstate  commerce,  84-98 
(See  also  Interstate  Commerce) 

EMPLOYERS'   LIABILITY  ACT  OF   1906 
text  of,  317 

unconstitutional  in  States,  34,  317 
valid  in  Territories  and  District  of  Columbia,  317 

EMPLOYERS'   LIABILITY   ACT  OF   1908 

action  under,  enforceable  in  state  courts,  245-273 

amended  1910,  34,  37 

amendment  of  1910,  not  retroactive,  64 

applies  to  all  interstate  employees  of  railroads,  35 

interstate  electric  lines,  83 
assumption  of  risk  not  to  be  implied  under  §  1  of,  102 
authorizes  new  plenary  action,  63 
classification  under,  attacked,  207 
constitutional  in  certain  state  courts,  132,  133 

lower  courts,  132 
constitutionality  challenged,  133 
construction  of  Act,  99 

§  1  of,  101-110 
contract  for  assumption  of  risk  not  enforceable  under,  102, 

106,  107 
creates  new  rights  and  new  obligations,  64 
enlarges  liability  of  carriers,  102 
fourteenth  amendment  not  in  conflict  with,  208 
frees  employee  from  legal  fiction,  175 
includes   employees   engaged  in   interstate  commerce,   84- 

98 
jurisdiction  under,  in  cases  under  $2,000,  236 

made  concurrent  in  1910,  273 
legislative  intent  of,  39-42 
not  mollified  by  conflicting  statutory  or  common-law  rules 

of  States,  63 
not  retroactive,  99 
passed,  34 


INDEX  359 

EMPLOYERS'  LIABILITY  ACT  OF  1908  —  Continued 
promotes  safety  of  employees,  39,  42 

safety  of  passengers,  41 
recommended  by  President  Roosevelt,  34,  39 
summary,  37 
supersedes  state  laws  giving  right  of  action  to  interstate 

employee,  65 
text  of,  319 

trials  of  causes,  changed  by,  268 
unconstitutional  in  Connecticut,  133,  230 
where  applicable,  exclusive,  65 

EMPLOYERS'  LIABILITY  ACT  AMENDMENT  OF  1910 

jurisdiction  made  concurrent  by,  273 
text  of,  322 

EMPLOYERS'   LIABILITY  ACTS 
among  States,  39 
first  enacted  in  England,  56 
in  Australia,  44 

British  Columbia,  44 

Cape  of  Good  Hope,  44 

Continental  States  of  Europe,  40 

England,  39 

New  Zealand,  44 

North  Carolina,  103 
report  of  committee  on  English,  176,  177 
report  of  New  York  Commission  on,  47,  51,  54 

EMPLOYMENT 

causal  relation  of,  to  injury,  96 

commences    when    servant    rightfully    enters    premises    of 

master,  92 
tortious  act  not  related  to,  96 
ENGINES 

action  authorized  for  defect  in,  37,  101 

ENGLISH  EMPLOYERS'  ACT  OF  1880,  104 

ENGLISH   PARLIAMENTARY   COMMITTEE 

report  of,  176,  177 
EQUAL   PROTECTION   OF   LAW  CLAUSE 
(See  Fourteenth  Amendment) 


360  INDEX 

EQUIPMENT 

action  authorized  for  defect  in,  37,  101 
EVIDENCE 

rules  of,  in  state  courts  not  disregarded,  233 
EXECUTOR 

action  by,  238 

(See  also  Personal  Representative) 

FAULKNER,    CHARLES   J. 

Counsel  for  Railroads,  121 
FEDERAL  ACT 

(See  Employers'  Liability  Act  of  1908) 
FEDERAL   COURTS 

jurisdiction  denned  by  Congress,  250 
FEDERAL  RIGHTS 

enforceable  in  state  courts,  256 

FELLOW-SERVANT    ACT    OF   INDIANA 

applied  to  members  of  construction  crew,  216 

FELLOW-SERVANT   DOCTRINE 

abolished  by  Act,  37,  57 

basis  of,  45-57 

claim  that  employee  voluntarily  assumes  risk,  48 

classified  together  all  railroad  employees,  203 

compensation  in  wages,  an  illogical  basis,  47 

created  by  courts,  57 

employee  has  no  opportunity  to  control  fellow-servant,  55 

Hoxie  case  comment  on,  rebutted  by  Connecticut  court,  274, 
275 

increases  accidents  to  employees,  52 

in  general,  45 

intent  of  Act  to  abrogate,  57 

North  Carolina  statute  abolishing,  219 

perils  compensated  in  wages,  45 

public  policy,  not  sound  basis  for,  51 

finery  as  to  intrastate  servants  being  in  common  employ- 
ment, 63 

risk  of  injury  an  obvious  risk  of  employment,  53 

saves  industry  from  being  overburdened,  54 


INDEX  301 

FELLOW-SERVANT  DOCTRINE  —  Continued 

theory  that  makes  employees  more  watchful  of  each  other, 

answered,  55 
voluntary  assumption  of  risk,  a  legal  fiction,  49 
where  circumscribed,  evils  decrease,  52 
FIFTH   AMENDMENT 

due  process  clause  of,  complied  with  by  Act,  171 

not  invaded  by  regulations  for  public  health  or  safety,  169, 

170 
not  invaded  by  sumptuary  legislation,  169 
not  violated  by  constitutionally  authorized  penalty,  174 
violation  of,  claimed,  157 
FOREIGN   COMMERCE 

regulation  of  interstate,  as  ample  as  that  of,  151 
FOSTER'S   FEDERAL   PRACTICE,  235 
FOURTEENTH   AMENDMENT 
defined,  217 
normal    exercise    of    governmental    power    not    restrained 

by,  208 
no  restraint  of  police  power,  211 

not  concerned  with  unpolicy  or  injustice  of  state  laws,  218 
permits  different  measure  of  damages  in  different  cases,  218 
rule  of  responsibility  in  different  cases,  218 
special  legislation,  218 
power  to  classify  not  taken  away  by,  209-220 
FREEDOM   OF   CONTRACT 

basis  of  denial  of  right  of  relief,  182 

contracts  to  avoid  consequences    of    negligence    to    freight, 

not  impaired  by,  184 
endangers  property  interests,  199,  201 
express  legislative  power  not  impaired  by,  185 
limited  by  public  health,  morals  or  safety,  192 
loose  construction  of  Constitution  brought  about  by,  199, 

200 
misapplication  of,  means  strikes,  183 
not  proper  basis  for  assumption  of  risk  doctrine,  176,  180 
test  of  validity  of  legislation,  198 
unduly  abridged  by  Act,  157-201 
theoretical,  sometimes  against  public  policy,  160-165 


INDEX 

FREEDOM  OF  CONTRACT— Ctmtimted 

unreasonable  as  relief  from  consequences  of  injury  to  men, 
184 

valid  regulations  of  commerce  not  affected  by,  187 

(See  Liberty  of  Contract;  Right  of  Contract) 

FULLER,  R.  H. 

representing  Railroad  Brotherhoods,  122.  123 

FUND 

beneficiaries  of,  determined  by  Act,  241 
created  by  Ac:    -   v 

not  part  of  workman's  estate,  241 

GRAIN 

contracts  for  future  options  on.  prohibited,  197 
regulation  of  storage  of,  constitutional.  192 
GUARDIANS 

Act  punishing,  constitutional,  239 

HAND   BRAKES 

operation  of,  query  as  to  violating  Safety  Appliance  Acts.  314 
HANDHOLDS 

defects  in.  313 
HEIGHT   OF   COUPLERS 

defects  it 
HEFBURN    ACT,  2 
HOURS   OF   SERVICE   LAW 
-'itutional,  116.  117,  139 

text  of,  336 

violation  of.  gives  absolute  right,  llo.  116 

HOUSE   OF   REPRESENTATIVES 

minority  report  of  Committee  on  Act,  61 

HOXIE   ( 

mswered  by  Iowa  court,  26-5-2 ~2 
review  of,  230  -  ~ ' 

INDEMNITY   FUND 

contributions  of  employer  to,  deducted  from  damages.     - 


INDEX  363 

INJURY 

Act  causing,  must  be  in  prosecution  of  master's  business,  97 

causal  relations  between  employment  and,  96 

liability  for,  while  car  moved  for  repair,  299-311 

no  recovery  for,  caused  by  plaintiff's  own  negligence,  99 

INSURANCE   FUND 

contributions  of  employer  to,  deducted  from  damages,  38 

INTERNATIONAL  TEXT  BOOK  COMPANY   CASE,  70 

INTERSTATE   COMMERCE 

any  car  used  in,  makes  train  interstate,  291 
business  of  interstate  electric  lines  included  in,  82 
character  of  shipment  attaches  with  loading,  74 

not  changed  by  interruption  of  transit 
at  State  line,  74 
Chicago  rioters  interfere  with,  226 
classification  of  employees  limited  to  those  engaged  in,  219, 

222 
constitutional  power  over,  not  affected  by  freedom  of  con- 
tract, 185-198 
employees,  instrumentalities  of,  144 
employment  must  relate  to  movement  of,  87,  90 
human  agency  most  important  factor  in,  147,  155,  156 
includes  business  by  correspondence,  73 

intercourse  by  telegraph,  71 
intrastate  servants  may  interfere  with,  226 
liability  of  railroad  engaged  in,  not  affected  by  ownership  of 

traffic.  73 
local  railroad  accepting  traffic  from  another  State,  engaged 

in,  77,  78,  79 
local  reshipment  by  new  consignor  not  included  in,  79 
membership  in  labor  organization  not  connected  with,  186 
method  of  proof  of  transaction  of,  82 
movement  of  defective  car,  part  of,  303,  306,  308,  309 
occupation  of  employees  of  interstate  carrier  is,  141 
participation  in,  subjects  to  Federal  Government,  75 
power  over,  includes  regulation  freight  rates,  140,  141 
railroad,  when  engaged  in,  68-83 

railroad  when  engaged  in,  summary  from  authorities,  81 
regulation  of,  as  ample  as  that  of  foreign,  151-152 


364  INDEX 

INTERSTATE  COMMERCE  —  Continued 

report  of  Senate  committee  on,  in  1910,  304-306,  311 
schedule  of  interstate  rates  open  to  public  inspection,  82 
shipment  through  contiguous  State  to  point  in  State  of  origin, 

76 
switching  of  interstate  cars  included  in,  80 
train  carrying  single  interstate  express  package  engaged  in, 

291 
what  employees  engaged  in,  84-98 
what  is  a  regulation  of,  136,  137 

INTERSTATE   COMMERCE   COMMISSION 

annual  report  of,  asks  authority  to  extend  time  for  com- 
pliance, 332 

authority  to  extend  time  given  to,  by  Act  of  March  4,  1911, 
332 

immunity  before,  extends  to  state  courts,  263 

non-compliance  with  orders  of,  violates  Safety  Appliance 
Acts,  315 

opinion  of,  as  to  interstate  electric  lines,  83 

order  of  June  6,  1910,  as  to  air  brakes,  314 
text  of,  346 

order  of  March  13,  1911,  as  to  extension  of  time  of  compli- 
ance, 332 

order  of  October  10,  1910,  as  to  height  of  couplers,  313 
text  of,  347 

order  of  March  13,  1911,  as  to  safety  appliance  equipment, 
333 

INTERSTATE   SERVANTS 

impossible  to  segregate,  228,  229 


INTRASTATE   SERVANTS 

impossible  to  segregate,  228,  229 

within  control  of  interstate  employer,  225,  226 

JUDICIAL  REVIEW 

subjects  of,  defined,  197,  199,  200 

JUDICIARY    ACT   OF   1789,  250 

JUDICIARY    ACT    OF    1875,  237 

JUDICIAL    CODE    OF    1911,  38 


INDEX  365 

JURISDICTION 

concurrent,  in  state  and  federal  courts,  100 
of  state  courts,  245-273 
of  United  States  not  foreign  to  States,  252 
JURISDICTION   OF  SUITS   UNDER  ACT 
in  either  federal  or  state  courts,  38 
in  state  courts  under  $2,000,  234-238 
in  United  States  Circuit  Court,  38 
removal  from  state  to  federal  courts  forbidden,  38 
transferred  to  district  courts  by  Judicial  Code,  38 

KENT'S   COMMENTARIES,  246 
KENT'S  INDEX-DIGEST 

of  decisions  under  federal  safety  appliance  act,  289 

LABATT,  C.  B. 

on  Master  and  Servant,  29,  30,  52,  56 
LABOR, 

hours,  of,  prescribed  by  state,  196 

Utah  statute  regulating  hours  of,  constitutional,  193 
(See  Hours  op  Service  Law) 
LA  FOLLETTE,  SENATOR, 

proposes  first  draft,  121 
LAISSEZ  FAIRE  THEORY 

outworn,  181 
LEGISLATIVE   BRANCH, 

limitations  of,  not  applied  to  judicial  branch,  259,  260 
LEGISLATIVE  DISCRETION, 

unlimited  within  its  powers,  197 
LIABILITY   OF   MASTER   UNDER  STATUTE 

"Contracting   out",  forbidden,  38 
LIBERTY   OF   CONTRACT 

merely  a  common-law  right,  166 

not  a  property  right,  166,  167 

interfered  with  by  Hours  of  Service  Law,  139 
(See  Freedom  op  Contract  ;  Right  of  Contract) 
LOCOMOTIVE  ASH   PAN   LAW 
(See  Ash  Pan  Law) 


366  INDEX 

LOCOMOTIVE   BOILER   INSPECTION   LAW 
summary,  118 
text  of,  339 

MACHINERY 

action  authorized  for  defect  in,  37,  101 
MARITIME   COMMERCE 

regulated  under  commerce  power,  151 

MASSACHUSETTS    STATUTE 

requiring  vaccination,  constitutional,  195 

MASSACHUSETTS  WORKMEN'S  COMPENSATION  ACT, 

57 
MASTER  AND   SERVANT, 

contract  between,  altered  by  legal  fiction,  178,  179 
engine  wiper  crossing  yard,  relation  of,  93 
loader  injured  leaving  boat,  relation  of,  93 
not  on  equal  footing,  161-165 

regulation  of,  incident  to  express  power  of  Congress  over 
interstate  commerce,  133,  135-140 
a  regulation   of  terms  of   moving   interstate 

commerce,  140-142 
promotes  industrial  peace,  142,  143 
relations  of,  not  local,  146,  147 

regulated  in  merchant  marine,  134 
when  servant  rightfully  on  premises,  92 
servant  on  public  highway,  relation  of,  95 
walking  on  tracks,  relation  of,  94 
state  legislation  upon,  valid  unless  Congress  acts,  138 
two  schools  as  to  construction  of  enactments  relating  to,  29, 30 
"MORAL  OVERSTRAIN,"    180 

NAVIGATION 

regulated  under  Commerce  Clause,  148,  149 
NEGLIGENCE 

as  to  equipment,  basis  of  action,  37 

carrier  liable  for,  of  officers,  agents  or  employees,  98 

malum  prohibitum  not  malum  in  se,  244 


INDEX  307 

NEGLIGENCE  —  Continued 

no  recovery  for  injury  caused  by  plaintiff's,  99 
where  that  of  employee  primary  cause,  no  recovery,  60 
(See  Contributory  Negligence) 

NEW  YORK  COMMISSION  ON  EMPLOYERS'   LIABIL- 
ITY, 47,  51,  54 

PENSION   CLAIMS 

regulation  of  fees  of  attorneys  for,  constitutional,  193 

PERSONAL  REPRESENTATIVES 

action  by,  238 

interpreted  to  mean  heirs,  242 

(See  Administrator  and  Executor) 
PILOTS 

regulation  of,  under  commerce  clause,  147 
PLEADING 

necessity  of,  basis  for  Federal  Right,  66 

rules  of,  in  state  courts  not  disregarded,  233 

special,  of  Act  not  necessary  in  federal  courts,  66 

POMEROY,   CONSTITUTIONAL  LAW,   149,  246 

PROHIBITION 

legislation  for,  valid,  196 

PUBLIC   POLICY 

best,  considers  injuries  as  part  of  cost  of  production,  40 
theoretical  freedom  of  contract  sometimes  against,  160-165 

PUBLIC   SERVICE 

reasonable  charges  for,  valid,  196 

RAILROAD 

duty  of,  under  Safety  Appliance  Acts,  283,  284 
held  to  liability  of  insurer,  243,  244 

Nebraska  act  so  holding  constitutional,  245 
station  refreshment'  room,  not  part  of,  91 
when  engaged  in  interstate  commerce,  68-83 
(See  also  Interstate  Commerce) 

RAILROAD   BROTHERHOODS 
represented  at  hearing,  122 


368  INDEX 

RAILROAD   COUNSEL 

claim  a  discriminatory  classification,  202 

contention  of,  sustained  in  Connecticut,  157 

report  of  committee  of,  32 
RAILROAD   EMPLOYEES 

classified  together  by  fellow-servant  doctrine,  203 

hazardous  for,  if  injured,  222 

(See  Classification  of  Railroad  Employees) 

RIGHT  OF   CONTRACT 

no  limitation  upon  Congress  to  restrict,  158 
not  a  property  right,  167,  168 
subject  to  power  of  Congress,  195 

state  authority  for  public  health,  safety  or  morals, 
196 
(See  Freedom  of  Contract;    Liberty  of  Contract) 
ROADBED 

action  authorized  for  defect  in,  37,  101 

ROOSEVELT,  PRESIDENT 

message  of,  34,  43,  222 

RUEGG'S  "EMPLOYERS'  LIABILITY  AND  WORKMEN'S 
COMPENSATION,"  50 

SAFETY   APPLIANCES 
list  of,  316,  333 

SAFETY   APPLIANCE   ACTS 

any  car  on  interstate  highway  included    under,  294 
amendment  of  1903,  text  of,  326 

1910  as  to  defective  cars,  306,  310 

1910,  text  of,  328 
amendment  of  Senator  White  to  original  act,  277 
assumption  of  risk  not  applied  under,  286 
Belt  Line  Railroad  included  under,  292 
cases,  list  of,  decided  under,  276,  277,  278 
common  law  changed  by,  280,  281 
f-onstruction  of,  280,  281,  285,  286 
contributory  negligence  not  a  defense  under,  288 
definition  of  "use"  of  defective  car  under,  296-311 
defects  in  violation  of,  list  of,  312-316 


INDEX  3G9 

SAFETY  APPLIANCE  ACTS  —  Continued 
duty  under,  in  personal -inj  ury  suits,  289 
in  suits  for  penalty,  289,  290 
hand  brakes,  operation  of,  query  as  to  violating,  314 
interstate  traffic  in  one  car  brings  train  under,  291 
law  of  1893  with  amendment  of  1896,  text  of,  323 
liability  absolute,   where  violated,  278-288 
personal  injuries,  liability  for,  while  car  moved  for  repairs, 

299-311 
reasonable  care,  not  sufficient  under,  283 
Stock  Yard  Company  included  under,  293 
terminal  companies  included  under,  292 
time  for  compliance  with,  extended,  332,  333 
violated  by  non-compliance  with  orders  of  Interstate  Com- 
merce Commission,  315 
violation  of,  gives  absolute  right,  112-114 

abolishes  assumption  of  risk,  37,  111 

contributory  negligence,  37,  111 
words  "any  car"  in,  defined,  290 

(See  also  Statutes  for  Safety  of  Employees;    Hours 
of  Service  Law;   Ash  Pan  Law;    Locomotive  Boiler 
Inspection  Law;   and  State  Statutes) 
SENATE  COMMITTEE  ON   INTERSTATE  COMMERCE 

report  of,  in  1910,  304-306,  311 
SENATE  JUDICIARY   COMMITTEE 

intent  of,  to  change  common-law  rules,  42 
report  of,  in  1910,  42,  61,  62 
SHEARMAN    AND    REDFIELD    ON    NEGLIGENCE,  264 
SMITH,    "MASTER  AND  SERVANT,"  244 
SOVEREIGNTY  OF  STATES 
not  reduced,  230-234 

(See  United  States) 
STATE   COURTS 

comity  between  States  recognized  by,  257,  258 
federal  Constitution  may  be  construed  by,  260 
rights  enforceable  in,  256,  266,  267 
statute  of  limitations  applied  in,  262 
jurisdiction  of,  245-273 

over  postmaster  in,  248 


370  INDEX 

STATE  COURTS  —  Continued 

remedy  under  federal  law,  sometimes  prescribed  by,  254 

removal  from,  forbidden,  273 

reviewable  while  enforcing  national  legislation,  247,  250 
STATE   LAWS 

yield  to  federal  power,  191 
STATE  STATUTES   FOR  SAFETY  OF  EMPLOYEES 

included  in  terms  of  Employers'  Liability  Act  of  1908,  119 

inclusion  of,  not  constitutionally  objectionable,  124,  125 

intent  of  Congress  so  to  include,  121,  122,  123 
STATUTE  OF  LIMITATIONS 

two  years  from  cause  of  action,  39 
STATUTES   FOR  SAFETY   OF   EMPLOYEES 

violation  of,  abolishes  assumption  of  risk,  111 

abolishes  contributory  negligence,  111 

(See  also  Safety  Appliance   Acts;    Hours  of  Service 
Law;    Ash  Pan  Law;    Locomotive  Boiler  Inspection 
Law;  and  State  Statutes) 
STORY   ON   CONSTITUTION,  149 
STRIKES 

encouraged,  183 
SUIT   BY   POOR   PERSON 

summary,  130 

text  of  Act,  333 
SUMPTUARY   LEGISLATION 

sustained,  1G9 
SURVIVAL   OF  ACTION,  39,  100 

TAFT,   PRESIDENT 

opinion  of,  42 
TRACK 

action  authorized  for  defect  in,  37,  101 

UNCOUPLING   MECHANISM 

defects  in,  312 
UNITED   STATES 

sovereignty  of,  concurrent  with  States,  252 

paramount  within  its  jurisdiction,  252 


INDEX  371 

UNITED  STATES   BUREAU  OF   LABOR 

bulletin  on  accidents,  52 
UNITED   STATES   MAIL 

query  as  to  carriage  of,  making  railroad  interstate,  70 

VENUE  OF  ACTION,  38,  100 

WAGES 

not  higher  in  dangerous  trades,  47 
WHARTON,  DR.  FRANCIS 
in  Southern  Law  Review,  55 

WHARVES 

action  authorized  for  defect  in,  37,  101 

WIDOW 

survival  of  action  for  benefit  of,  100 

WOMEN 

employment  of,  in  laundries  more  than  ten  hours  a  day 
prohibited,  197 
WORKMEN'S   COMPENSATION   ACT 

in  Massachusetts,  held  constitutional,  57 

WORKS 

action  authorized  for  defect  in,  37,  101 
WRONGDOERS 

no  contribution  between,  244 


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